Obligation for an employer to declare a vacancy

An employer is looking to fill a vacancy to strengthen his team. He wants to supervise the recruitment himself.

THE QUESTION

Must the employer declare the vacant post? Can he personally supervise the recruitment process?

LEGAL BASIS

Labour Code: Article 622 - 4

IN THEORY

Any employer legally established in Luxembourg is required to report any vacancy to the Agence pour le développement de l’emploi (ADEM).

Similarly, any employer wishing to manage the recruitment process for a vacancy in his company must apply to ADEM for a certificate to this effect.

IN PRACTICE

1. Declaring a vacancy

When an employer has a vacancy to fill within his company, he must follow a precise process to ensure that everything is done in accordance with the law.

The first step is to declare the vacancy to the ADEL, which can be done online via MyGuichet or by filling in a form available on the ADEM website.

The employer must include four items of information in this declaration. Firstly, they must state their identity. Secondly, they must provide a detailed description of the vacant post, highlighting the associated responsibilities. The third piece of information to be included concerns the skills required, the level of training, qualifications, language skills and professional experience needed to fill the post. Finally, the employer must specify the working conditions offered for the position, such as salary, benefits and working hours.

It is important to note that declarations of vacancies are considered to be job offers.

Employers who fail to comply with their obligations to declare a vacancy for the first time, or who provide false information when making the declaration, or who refuse to consider the declaration as a job offer, may be liable to a fine of between €251 and €2,500. In the event of a repeat offence, the fine may be increased from €251 to €6,250.

Once declared, all job offers are made public on ADEM's JobBoard. Employers then have a choice of two ways of advertising their vacancies:

• The first restricted mode: does not disclose the name of the company and limits the visibility of the advert to jobseekers registered with ADEM, who is responsible for pre-selecting candidates.
• The second public mode: allows the company's name and contact details to be published, and makes the advert accessible to all jobseekers, whether or not they are registered with ADEM. There is no pre-selection of candidates.

2. Certificate to supervise the recruitment process

If an employer wishes to supervise the recruitment process himself, they are required to apply for a certificate from the Director of the ADEM.

This certificate will attest to the employer's authorisation to select the right candidate for the job, whether they are a resident, non-resident, European or third-country national, as long as they have the necessary skills for the job. The application for this certificate must be submitted by the employer before the closing date of the vacancy specified in the vacancy notice.

Once the employer has sent in the application for the certificate and it has been received by the ADEM, the latter checks whether the vacancy corresponds to one of the occupations in short supply in Luxembourg. If so, the certificate is issued to the employer within five working days.

However, if the position does not correspond to a trade in shortage, ADEM will carry out an assessment over a period of seven working days to find candidates who meet the criteria required for the vacancy. If no suitable candidates are identified during this period, the certificate is issued to the employer within five working days.

Nevertheless, if one or more candidates meet the criteria set by the employer for the vacancy, the ADEM will present them to the employer for a period of fifteen working days.

Within one month of the candidates being put forward, the employer must provide detailed feedback on each candidate, in the event of rejection. This feedback must be supported by a precise justification, comparing the candidate's profile with the job description.

If the ADEM considers that the justification provided by the employer for the rejection of the candidate(s) is not sufficient, the application for a certificate may be refused.

However, if ADEM considers that the rejection is justified and that the employer has complied with its obligations, the certificate will be issued within ten working days.

It should therefore be noted that obtaining this certificate is not systematic. There are three ways of obtaining it:

• If the vacancy is a job in short supply in Luxembourg;
• If the vacancy is not a job in short supply in Luxembourg but ADEM is unable to find candidates who meet the job criteria; or
• If the vacancy is not a job in short supply in Luxembourg, ADEM proposes one or more candidates and the employer refuses, providing a justification that satisfies ADEM.

It is important to emphasise that if the Director of ADEM finds that an employer has introduced a selection criterion that is not essential for the post or has added criteria that do not correspond to the real needs of the sector of activity, he may reject the application for a certificate at any stage in the procedure.

CONCLUSION

In conclusion, it is crucial to dispel the myth that employers can recruit freely for a vacancy without declaring it to the ADEM.

In accordance with article 622-4 of the Labour Code, all vacancies must be declared to ADEM.

Similarly, if the employer wishes to take charge of the recruitment process himself, he must obtain a prior certificate from the director of ADEM. It is important to stress that obtaining this certificate is not automatic and is subject to certain specific conditions.

In short, hiring decisions must be based on legal and justifiable criteria, not arbitrary ones.