Meeting the current requirements

Posting a satisfactory job advertisement can be difficult as there are set rules as to where and what can be advertised. Additionally, for UK immigration purposes, advertisements must contain specific information, such as job title, job description, qualifying criteria, salary, the location of the role, and closing date of the advert, etc.

We have seen cases where sponsors have, only after their job postings have closed, realised that certain details were not included. This can then leave an employer having to re-advertise a role for a further 28 days in order to satisfy the RLMT before being able to sponsor an individual under Tier 2.

Given the implications on sponsors and their potential migrant employees should any delays occur, it is advisable for sponsors to familiarise themselves with, and stay on top of, the latest Tier 2 job advertising requirements of the Immigration Rules as well as to seek advice from immigration practitioners where necessary.

Discriminatory wording in a job advertisement

For an employment law perspective on the dos and don'ts of the phrasing in job advertisements, Jon Heuvel, a partner in our employment team, has the following advice:

Discrimination on the grounds of certain protected characteristics has been outlawed by statute for almost 40 years now; over the same period, the social mores of the nation have undergone a sea-change. These days, it is rare for an employer to be overtly and deliberately discriminatory towards its employees or potential hires. However, it can sometimes be difficult avoiding others from drawing potentially adverse inferences from what is intended as innocuous language or behaviour.

Take, for example, the following hypothetical advert for a start-up business: 'dynamic start-up business seeks young and enthusiastic post-graduate to work in the administration department. No previous experience required.' At first blush, it is unlikely to offend; however, if we study the specific language used more carefully, we can see that there are a number of concepts which might easily be considered to potentially discriminate against an older applicant. These days, age is one of the protected characteristics in respect of which discrimination is outlawed (under the Equality Act 2010). Therefore, the business which placed this advert could potentially find itself being taken to an employment tribunal by an unsuccessful applicant for discrimination.

There are two types of discrimination which could arise in this context:

  • Direct discrimination – this arises where a person is treated less favourably than others 'because of' a protected characteristic. For example: 'this job is only open to female applicants' would be directly discriminatory, as a man is prevented from applying 'because of' his sex.
  • Indirect discrimination – this arises where a provision, criterion or practice (PCP) is applied to everyone, but puts certain people with a protected characteristic at a disadvantage when compared to others who do not share that protected characteristic. For example: 'this job is only open to applicants who are more than 6ft tall'. It is likely that female applicants will find it more difficult to comply with that requirement than male applicants, and female applicants are therefore at a disadvantage. Unlike direct discrimination, however, there is a defence of 'justification' for indirect discrimination. To succeed, an employer would need to be able to show that the requirement is a proportionate means of achieving a legitimate aim. If, for example, the employer in this instance could show that the role involves using a particular piece of machinery which requires a person of that size to be able to operate it, that would be a justification for imposing the particular requirement.

So how might all of this impact on your business in an immigration context? In the context of a Tier 2 application, you will need to satisfy the RLMT or an exemption to the RLMT will need to apply, eg the gross annual salary is at least £153,500, the Post-Study Work provisions apply, etc. Should you be required to undertake the RLMT, you may need to ensure that the job has been advertised through Universal Jobmatch (UJM), previously JobCentre Plus; this is unless the type of job does not require this, eg the gross annual salary is at least £71,600, etc.

Not surprisingly, UJM will carefully review the text of any advertisement before accepting it in order to ensure that it does not contain anything which could potentially be discriminatory. The protected characteristics particularly in the minds of UJM when conducting this exercise are likely to be those of race (which includes nationality, colour and ethnic origins) and religion or belief.

Recently, we have noticed an increasing tendency on UJM's part to be extremely sensitive – arguably overly so – about certain terms. In particular, references to language skills, eg 'fluency in [language] is an essential requirement for this role', seem to cause concern, and often result in UJM contacting the employer to request further information and justification for including the requirement at issue. Inevitably, this delays the process, which can be frustrating at the best of times, but even more so where there is an element of urgency in the recruitment.

If you want to minimise the risk of such delays, you need to take particular care when wording your advertisement, making sure that you can justify every requirement or condition, and ensure that the language used does not come across as potentially discriminatory.

Proposed changes to the requirements for job advertisements

In relation to job advertising in general, as announced in July 2014, the Department for Business, Innovation & Skills (BIS) is seeking views on a proposal to amend legislation to include a new regulation which would prohibit employment agencies and employment businesses from advertising vacancies in another European Economic Area (EEA) country without also advertising in Great Britain.

BIS's consultation on prohibiting employment agencies and employment businesses from advertising jobs exclusively in other EEA countries is due to close on 2 September 2014. If you want to have your say on the proposed changes, please let us know if you would like us to respond on your behalf.

Readers of the consultation should take note that, in one particular instance, the consultation states:

"The only exemption to the Resident Labour Market Test is where a post is deemed a ‘shortage occupation’ for the UK."

This statement is incorrect as there are other exemptions to the RLMT, some of which we have mentioned above.