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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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Hi - I have just undergone an interview that was advertised

Resolved Question:

Hi - I have just undergone an interview that was advertised externally (I am an agency worker at the firm) and even though I was rated the best candidate by the panel, they couldn't offer me the job because the company had a policy of developing internal applicants. Nothing is in writing regarding this.
Submitted: 3 years ago.
Category: Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. What would you like to know about this specifically?

Customer:

I was under the impression that as the job had been advertised externally then it was down to the merits of the applicant and not whether they were external or internal. I even got this is writing from the companys recruitment centre. However the lead panelist advised me on completion that they couldn't offer me the job, even if they wanted to, because they had a policy to develop internal applicants. Is this fair/right?

Ben Jones :

Employers have the right to choose who they employ and can make such decisions based on a wide range of factors. There could be a number of reasons why one candidate is chosen in preference to others or why someone is not given a job, even if they are generally considered to be the best candidate. It is generally lawful for the employer to use whatever factors they feel are relevant and appropriate in the circumstances to come to that decision.


 


The only requirement in law is that the employer’s decision is not based on discriminatory grounds. That means that it should not base its decision on factors relating to gender, race, religion, age, disability, sexual orientation, etc. If its decision is based on any of these, there will be a potential case of discrimination and the affected person can potentially take this further. However, in the absence of any discriminatory reasons, the employer will rarely be acting unlawfully and will have the general power to be selective over whom it employs, even if it this generally appears to be unfair.


 


A far as protection for agency workers exists, you have the right to be provided with the same employment opportunities on vacancies as permanent employees, although what this basically means is the that you should be given access to apply to the same vacancies s others, but it does not guarantee you a job, even if objectively you are considered the best candidate.

Customer:

Thank you - I am still working there so at least I have a job, albeit a little unsecure

Ben Jones :

Yes I understand, that is one of the pitfalls of agency work - it simply ha no certainty and it is used on an as needed basis by employers

Customer:

If the job was only advertised internally would "the protection for agency workers" mean I could have applied for an internal vacancy or am I still classed as "external" in this instance. I wasn't able to apply until the job advert hit the external website not via internal means

Ben Jones :

you basically need to be given the same opportunity to apply for the vacancy as permanent employees so if they knew about it at a different time than you and you only found out later then it could be a breach, but would not change your selection for the job

Ben Jones :

It is possible to make a claim in a tribunal, which can make a declaration, order payment of compensation and make recommendations for action to be taken (but they cannot force the employer to employ you in the position)

Customer:

I got the impresiio

Customer:

There is more to this really, I got the impression the panel wanted to employ me but was getting direction from higher. They had received a complaint from the internal employee regarding why the job had ever been advertised externally when previously vacancies had not. If I could prove that I could have applied to an internal vacancy then that might squash this complaint

Ben Jones :

well the requirement on he employer is to inform agency workers of relevant internal vacancies to give them the same footing as their own employees when it comes to such employment opportunities, so it depends in you were informed about it, but again it won't actually guarantee the job - the duty is to inform you of the opportunity to apply, they could still reject you

Customer:

Last question Ben - I knew the job was being advertised but wasn't allowed to apply until it went external - is this correct?

Ben Jones :

the key is whether you were informed about it when internal applicants were told

Ben Jones :

but any compensation you may get is likely to be modest because you still managed to apply for it eventually and have the same opportunity to apply as internal candidates

Customer:

thank you, XXXXX XXXXX want to make a claim, just understand the decision and I dont mean from a bitter point of view. The only reason they gave me was this policy to develop internal employees and if I could prove I was on an equal footing to internal employees and not classed as external then I might be able to dampen the complaint put in

Ben Jones :

but the issue is not how you were selected for your suitability for the job, it is simply about the initial information about the vacancy - if the employer wanted t they can choose an internal candidate over an agency worker based in that alone

Customer:

Put it another way, if the job didnt go external then I wouldnt have been able to apply - is that fair ?

Ben Jones :

no, it's not but all you can do then is to make the claim as mentioned above which would still not guarantee you the job

Customer:

Thank you for your time Ben

Ben Jones :

you are most welcome

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