The short answer to this question is ‘yes’ but not surprisingly there are several factors to take into account.
In this article we explore the circumstances where an offer of employment can be withdrawn and when it should not. We will also provide some top tips and advice on how to get the job offer stage right.
What is a job offer?
A job offer is made to a successful applicant following a recruitment exercise.
Usually in the form of a letter, a job offer includes the following:
- The type of job offer– conditional or unconditional
- The main terms and conditions of the role, such as the job title, the hours of work, annual leave entitlement and salary
- What the candidate should bring with them on their first day of employment, such as their P45 and proof of eligibility to work in UK.
- Who they should report to/ask for on their first day.
- That a formal employment contract will be provided on the first day of employment* unless a contract is being issued with the offer letter
*Contracts of employment must be issued on day one of employment. It used to be that they could be issued within the first 8 weeks of employment, but this was repealed in April 2020.
What is the difference between a conditional and unconditional job offer?
A conditional job offer is one which has certain conditions attached to it which must be satisfied before the employment can commence. These job offers usually do not specify a start date.
For example, in the Care Sector a job offer that is dependent upon clearance from the Disclosure and Barring Service (DBS) would be conditional. As would an offer in the financial services sector which is dependent upon a financial background check.
A job offer which is subject to receipt of satisfactory references is also a conditional offer.
An unconditional job offer is one where the candidate is offered the job, given a start date and there are no conditions affecting their offer.
Is a job offer a legally binding contract?
It can be yes and this is where withdrawing job offers can get employers into hot water.
Certainly a job which is offered and accepted on an unconditional basis will be contractual at the point of offer. Even a verbal unconditional job offer could be contractual, though their existence is harder to prove, unless of course the candidate has already started work.
What if the offer is withdrawn before it is accepted?
This will reduce your risk substantially because the argument will be that a contract has not yet been formed.
This is why it is good practice to issue a job offer in writing and ask for written acceptance.
What is my legal risk if I withdraw an unconditional job offer?
The immediate risk is that you are in breach of the contract that exists. This would entitle the candidate to try and claim damages from you, which at the very least would involve you being liable for the notice period.
If the reasons for withdrawing the offer of employment are linked to a protected characteristic, you are at risk of a discrimination claim.
Please see our previous article on discrimination for more information here.
The most common example of this would be that the employee discloses they have a health condition which is classed as a disability under the Equality Act, or they disclose they are in the early stages of pregnancy. If the offer was withdrawn under those circumstances this would be unlawful.
What if I have made an unconditional offer of employment and then find out the employee has lied about their qualifications or experience?
Withdrawing the offer would not be appropriate because there were no conditions attached to the job offer.
This is a conduct issue because it calls into question the employee’s integrity and would give rise to a loss of trust and confidence.
You would be advised to address this by calling a probation review, if the employee is in a probation period, or call them to a disciplinary hearing. Depending on the circumstances, you may be able to terminate the employment contract.
What if we receive a poor reference after the employment has commenced- can the offer be withdrawn?
Again, if this was an unconditional offer you would not be advised to withdraw the job offer because technically satisfactory references were not a condition of the offer.
If the offer was conditional upon receipt of satisfactory references, you may be able to withdraw the offer, unless you have allowed the employee to commence their employment.
Remember– references are provided in confidence, so if you wish to make their content known to the candidate or employee, you should have the referees written permission.
- Set out the job offer in writing and be clear on the detail of that offer
- Set a deadline for when a written formal acceptance should be submitted– make clear that if the job is not formally accepted by this date, you will conclude that the candidate is no longer interested and the job offer will be withdrawn.
- Conditional vs unconditional job offers. The pressure to fill a vacant role may be on but if you want the job offer to be conditional upon receipt of satisfactory references for example, make that a condition of the offer and don’t allow the employee to start work until the references are received.
- Don’t use withdrawing a job offer to tackle misconduct or suitability. If the employment has commenced and you think you’ve made the wrong choice of candidate (it happens!) then take action to terminate the contract fairly- don’t withdraw the offer.
- Don’t withdraw offers of employment for discriminatory reasons or use discriminatory conditions when making a conditional job offer.
- Seek our advice. We can assist you at recruitment stage. We will be happy to check over, or provide wording for, job offers.
Next week– What are you allowed to ask in job interviews?