24 June, 2016
There is no specific legal obligation to advertise positions either internally or externally or in any particular way at all: it is an organisational decision to make.
However, there are a few potential risks to be aware of in choosing how to advertise.
Do you have a Recruitment Policy? If so, you should ensure this does not promise employees that available positions will be advertised internally in the first instance or will always be advertised externally. Similarly, any Trade Union /Collective Agreements should be reviewed for reference to internal recruitment promises as these can be a feature and failure to act in accordance with these Agreements will place you in breach.
The Equality Act 2010 places an obligation on you as an employer to not discriminate against a person in the "arrangements" you make for deciding to whom to offer employment. The concept of "arrangements" is construed broadly and one interpretation is that this could include how a vacancy is advertised, although we consider the risk of a successful claim being brought is low. In any case, it is a defence to show there was a good reason for choosing to advertise internally only.
When advertising internally it is important to ensure that this is done openly so that everyone in the organisation is given the opportunity to apply. This includes ensuring that employees who are absent from work, e.g. on sick leave or part-time employees, are informed of any jobs which become available so that they can consider whether or not to apply. This is vital as 'absent' employees may have a protected characteristic, which might open you up to liability for discrimination if they are denied an opportunity.
There are also certain circumstances where it is clearly acceptable to advertise internally only, e.g. during a redundancy situation, as an employer is obliged to consider alternative employment opportunities for those employees selected for redundancy, to ensure a fair and reasonable redundancy procedure is in operation.
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