It is an unlikely event that an employer may wish to withdraw a job offer once it has been accepted. However, there may be occasions where information comes to light post interview or circumstances change.
In some situations, it may be possible for an employer to lawfully withdraw an offer of employment. This depends on whether the offer was conditional or unconditional.
When Can an Employer Withdraw a Job Offer?
There are two types of job offer; conditional and unconditional.
Withdrawing a Conditional Job Offer
Usually, job offers are conditional. This means that the applicant first needs to satisfy certain requirements such as satisfactory references, criminal record checks, and proof of right to work in the UK. Where an applicant fails to meet these requirements, a job offer can be withdrawn. This is because the job offer remains incomplete until all conditions are satisfied.
However, this is different if the application goes on to meet all the conditions required after the conditional offer has been made and accepted. In this situation, the applicant would be able to take legal action against the employer for breach of contract.
If the job offer is rescinded for another reason, such as because they have discovered that the applicant is pregnant, they may be liable for unlawful discrimination. There is no qualifying service period before an individual can claim discrimination based upon any of the protected characteristics under the Equality Act 2010.
Withdrawing an Unconditional Job Offer
An unconditional job offer is made without any conditions attached. If the applicant is yet to accept the offer, it can be withdrawn by the employer. If the unconditional offer has been made and accepted, then there is a legally binding contract of employment. This is subject to the applicant being able to prove offer and acceptance.
Employer Liability When Withdrawing a Job Offer
Many employers believe there is nothing wrong with taking back a job offer prior to the proposed employee starting work. However, the employment contract rarely begins on the employees first day. Instead, it usually becomes binding upon acceptance of the job offer, and if a conditional offer, then once the conditions have been satisfied.
The financial liabilities for breach of contract can be very costly where a successful claimant may be entitled to recover damages for any losses suffered. The idea of a claim is to put the applicant back in the position they would have been in before the breach occured. The overall effect of withdrawing an accepted offer is to terminate the employment contract without notice.
Where Do I Stand With a Verbal Job Offer?
A verbal job offer acts in the same way as a written one. The case of McCann v Snozone Limited provides useful guidance on the situation. The applicant McCann attended two interviews and was given a verbal offer by a recruitment agency to fill the position, which he accepted. Snozone later denied that a formal offer had been made and Mr McCann brought a claim for breach of contract before the Employment Tribunal. It was held that Snozone, acting through the recruitment agency, had verbally offered Mr McCann a job which had been accepted. This then created a contract of employment which could only be terminated by following the notice period in the contract of emploment. The Tribunal confirmed that verbal job offers are capable of being legally binding and a withdrawal of such may constitute a breach of contract.
How Can I Avoid This as an Employer?
It is essential that you are confident in the applicant before offering them a position. There is often the temptation to make a verbal offer on the spot. However, even if you feel like you have found the right person, an offer of employment should be conditional, subject to all relevant checks and references. The advantage of a conditional job offer is that you can withdraw the offer without being in breach of contract.
If you would like to discuss any points in this article further, either as an employer or as an applicant, please contact Spire Solicitors LLP on 01603 677077.
