Ask the Expert: Do internal applicants have any comeback if someone external gets the job?

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The question 

I have recently had a situation at work where an opportunity for promotion arose internally. Three internal candidates applied, but before their interviews took place, rumours began to circulate about the existence of an external candidate.   All three candidates were interviewed and subsequently rejected and the external candidate was offered the job. Is this acceptable? What is the legal position here? Do internal candidates have any legal rights in this situation and must these kinds of jobs be advertised externally?     Martin Brewer, a partner at Mills & Reeve   Yes, this is entirely acceptable. There is no law on how or where to advertise jobs although, if you work for a public sector employer, there are public duties that impinge upon the general freedom to recruit in whichever way you would like.   An employer does have to be sensitive to equalities law when deciding on how to recruit, where to advertise, the job and person specifications and so on. But, as I say, in general terms, internal candidates are not entitled to favourable treatment. Martin Brewer is a partner at Mills & Reeve.     Esther Smith, a partner at Thomas Eggar   An employer is free to decide whether to recruit internally, externally or both. Therefore, generally speaking, it is perfectly acceptable for an external candidate to be offered the position over three internal ones.   There would be no legal basis to bring a claim against the employer for this reason alone, unless their action could somehow be said to constitute a fundamental breach of a candidate’s contract of employment. This would entitle them to resign and claim constructive dismissal, assuming that they had a year’s service.   The Equality Act 2010 applies to job applicants who are going through the recruitment process as well as employees and, therefore, the only other possible route of complaint would be if a candidate felt that they had been discriminated against, by not being properly considered for the role, on the grounds of one of the ‘protected characteristics’ defined by the Act (ie age, sex[***], race etc). A claim could then be brought against the employer for discrimination.   Esther Smith is a partner in Thomas Eggar's Employment Law Unit.

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