From time to time, employers
may find that they wish to appoint an individual to a post without the need to
advertise it.
Although such action is not
specifically unlawful, it is frowned upon. The Equal Opportunities Commission’s
Code of Practice states that "recruitment solely or primarily by word of
mouth may unnecessarily restrict the choice of applicants available. The method
should be avoided in a workforce predominantly of one sex, if in practice it
prevents members of the opposite sex from applying". That code also recommends being thoughtful
and unbiased about exactly where advertisements for job vacancies are
placed.
The Commission for Racial
Equality’s Code of Practice also advises a careful and balanced advertisement
process in respect of vacancies. It specifically disapproves of recruitment
through the recommendations of "existing employees where the workforce
concerned is wholly or predominantly white or black and the labour market is
multi-racial".
Indirect sex or race
discrimination
Appointments without
advertising can constitute indirect sex or race discrimination. This was the
claim brought against the Lord Chancellor when he appointed a special advisor
without advertising the post. For such a claim to succeed (a) there must be a
requirement or condition imposed, (b) with which a considerably smaller
proportion of one sex or race can comply, (c) which cannot be justified on
objective grounds, and (d) which must be to the applicant’s detriment because
she cannot comply with it.
Possible defences
Appointing an individual only
from those people known to the person doing the appointing could well
constitute imposing the requirement or condition as set out above at (a).
Whether or not a considerably
smaller proportion is affected is a matter of fact. Where, however, the numbers
of those who can comply and those who cannot are both very small, one could
argue that (b) has not been fulfilled.
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The EAT also confirmed that the
test of justification at (c) is strictly interpreted. The justifying reason
must be that the person who made the appointment acted in the way it did to
achieve a legitimate objective in a way which was both necessary and
appropriate. The "uniqueness" of the individual concerned, and the
reasons for wishing to avoid advertising would need to be carefully canvassed.
The "detriment" test
(d) gives employers another ray of hope. The Employment Appeal Tribunal
majority said that the claimant must show some material and substantial
physical or economic detrimental consequence as a result of the discrimination.
This could be difficult for the claimant to do.
