Work Permits - Waiver of Advertising

Lucy Pattullo examines ways of persuading the Department for Education & Employment to waive the advertising requirements for work permit applications.

One of the main requirements of the full work permit scheme is that there must be no other suitable candidates from the resident labour force. This requirement is normally satisfied by advertising the position in a way approved by the Department for Education and Employment (DfEE). There are four standard situations in which the DfEE will waive advertising requirements.

The first concerns intracompany transfers where the applicant has been employed within the same group of companies overseas for at least six months. The six month rule is strictly applied although it is possible in exceptional circumstances to ask for an application to be treated like an intracompany transfer where someone has less than six months' in-house experience. It is also possible to request applications to be treated as intracompany transfers where they are not strictly intracompany but there is a very close link between the overseas and UK entities - for example, if there is a joint venture.

The DfEE also waives the advertising requirements if the position is a board level one. There used to be a stipulation that the salary had to be £50,000 or more but that has now changed. This is in recognition, not so much of the fact that board level positions can command salaries of less than £50,000, but that people are often paid significantly more than that even though their position is not board level. If the position involves a seat on the board, then this category is normally straightforward to satisfy. However, often companies have complicated corporate structures whereby a title is given of, say "managing director" of a division, but there is no seat on the board of directors. It is often possible to make successful arguments that a person nevertheless holds a board level position.

Where it can be shown that there is substantial investment coming into the UK as a result of the hiring of the overseas national, the advertising requirements can also be waived. The DfEE normally wants to see a substantial investment in excess of £300,000. This is a good requirement to remember if you are making an outside hire where you do not want to advertise.

Finally, the DfEE will sometimes waive advertising if a special case is made out - for example, if it is possible to satisfy the DfEE that advertising would be fruitless as all potential candidates for the position can be identified by a head-hunt. This is often the position if the post is very senior and it is clearly possible to identify all potential candidates within Europe. It must be remembered that advertising is not just for the UK labour force but for the resident labour force within Europe. It is also possible to argue that advertising requirements should be waived in other circumstances where it can shown that the employer has already gone to considerable lengths to find candidates for the position by spending several thousand pounds on their own recruitment methods which have been extensive.

Generally speaking, when advertising is required, the DfEE likes the advertisement to be placed in a heavyweight newspaper available across Europe such as The Times or The Daily Telegraph. For certain positions it is possible to argue that advertising on the Internet should be sufficient. However, it would be necessary to prove that all potential candidates for the position would look at that medium for jobs and it is obviously easier to show that if the job has direct connections with the Internet. The DfEE has a duty to protect the resident labour force in the UK and the rest of Europe and cannot dispense with advertising requirements lightly. However, it is amenable to commercial arguments and, if there are such arguments, it is only sensible to articulate these to the DfEE to avoid not only the expense of the advertisement but a considerable number of hours of personnel time spent interviewing when, in truth, your ideal candidate has already been identified.