We all want relationships to start off on the right foot and hiring a new member of staff is no different. The first formal stage in that journey is your offer of employment. But what happens if you have second thoughts, and decide that you want to withdraw it after it’s been sent?
Here are 5 things all employers need to know:
1. Do I have to give notice?
No. If you want to withdraw a job offer and no contract of employment has yet been formed, then you can simply notify the applicant that the offer is withdrawn. It can get a little more complicated if they have already accepted the offer. Whether or not a contract of employment has been formed depends on their acceptance and whether any conditions of the offer have been met.
2. Have the conditions of the offer been met?
Did you make a conditional offer? Conditions could include satisfactory references and/or evidence of the right to work in the UK. A contract is only binding when these conditions have been met.
3. When are you in breach of contract?
If a contract of employment has been formed, then withdrawing it will amount to a breach of contract. You will need to pay the employee for any notice period in the contract to avoid a breach of contract claim. You can limit the impact of having to pay notice in this scenario by adding a short notice period at the start of employment in the probationary period provisions of the employment contract.
4. When does withdrawing a job offer become tricky?
As soon as an employment contract is formed, automatic unfair dismissal protection applies. Therefore, withdrawing the job offer will be a de facto dismissal. If your new hire believes that the job was withdrawn because of a reason such as whistleblowing or pregnancy (to which automatic unfair dismissal rights apply) then you’d be at risk of an automatic unfair dismissal claim. This is why it’s important to clearly document the reason for any withdrawal of any job offer.
5. Be prepared for allegations of discrimination
Protection from discrimination arises from the point that someone applies for a job with you. Therefore, any decision to withdraw a job offer risks an allegation that the withdrawal was in some way discriminatory. This happened in the recent case of Ngole v Touchstone Leeds, when a job offer was withdrawn because of the applicant’s protected belief.
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