Employers may soon have to prove the job exists

Under a consultation note now circulating between national labour inspectorates, an employer who publishes a job advertisement could in future be required to demonstrate, on request, that the position existed. The document proposes no fines, sets no date and describes itself as an early scoping exercise. It does propose a name for the offence — advertising without intent to fill — which is usually the stage at which these things begin to exist.

Enforcement would be complaint-driven. A candidate who applied and heard nothing could ask the inspectorate whether the role was real, and the employer would have a set period to produce the ordinary evidence that it was: an approved requisition, a budget line, an interview record, or a person now doing the job. The drafters point out that this burden would be trivial for anyone who actually hired somebody, which is either reassuring or the entire point.

The scaling penalty is what would make the proposal contentious. Under the draft, the sanction would rise with the number of applications received, on the reasoning that the harm is measured in other people's evenings. A posting that attracts nine applicants would be a paperwork failure. A posting that attracts nine hundred, each arriving with a tailored letter and a night of hope attached, would be something the draft carefully declines to name.

“We would not be asking any company to hire anyone,” a spokesperson for the inspectorate would explain. “Hiring is a commercial decision and remains entirely free. We would be asking companies to have meant it at the moment of publication. We accept that this is a difficult thing to inspect and an easy thing to recognise.”

Employer objections would be substantial and, in places, fair. Talent pipelines are built legitimately. Approved roles are frozen when a quarter turns. Some positions are advertised because an open competition is procedurally required even where the internal candidate is the obvious answer. A rule against advertising without intent would therefore have to carve out the one category of ghost job that another rule actively mandates, which is the sort of exemption that swallows a regulation whole.

The predictable product would be a new field. Applicant tracking systems would grow an intent to fill attachment, vendors would offer a compliance score to populate it, and the score would be generated from the same data that currently produces nothing at all. Companies would not stop posting roles they cannot fill. They would start documenting why they believed, at the time, that they could.

What the draft does not contain is a remedy for the applicant. The fine, if it ever existed, would be payable to the state; the nine hundred letters would remain unanswered, unpaid and unread. The proposal would establish that a wasted application is a harm, and then send the compensation somewhere else.