Can I withdraw a job offer made to an prospective employee?

Sometimes there is a need to withdraw a job offer made to an individual by an Employer. When considering the risks and options it is first helpful to consider whether the job offer made was ‘conditional’ or ‘unconditional’.

Types of offer
A ‘conditional’ job offer is an offer made where certain aspects need to be met, for example receipt of satisfactory references or satisfactory criminal record checks. It could also include criteria like proof of academic qualifications, or providing satisfactory proof of right to work in the UK.

In this circumstance, if one of the criteria set out in a job offer is not met then an Employer can withdraw the job offer with no further consequences. An individual can ask an employer why the offer has been withdrawn but an employer does not have to share the reason but it can be useful to do so.

An ‘unconditional’ offer is an offer may without criteria attached.

Is there a binding contract in place?
Once the type of offer is established, it is necessary to understand if a binding contract has been formed. A binding contract shall be in place if:

• The offer was made with no conditions (or these have been met)
• The employers’ terms are set out in a clear and definite way (either verbally or in writing)
• The prospective employee has accepted the job offer (either verbally or in writing)

Should an individual have accepted their job offer and satisfied the conditions in their conditional job offer and then then Employee wishes to retract the offer for other reasons, there would be a binding contract in place.

Likewise, if job offer is unconditional, the terms are defined and the prospective employee has accepted it then it is likely that a binding contract is established.

If there is a binding contract , then withdrawing the offer would amount to a breach of contract by the Employer. This would allow a prospective employee to claim for damages. Compensation for such a claim is usually equivalent to payment for the period of notice the individual would have been entitled to if they had started work.

If, however the job offer has not yet been accepted by the prospective Employee and the Employer withdraws it, as there is no contract formed yet, withdrawal of the job offer at that point wouldn’t constitute a breach of contract.

What to do?
If a contract is binding, you may first consider alternative options like delaying the start date if it is circumstances that would allow for this, are allow them to start and agreeing a period of unpaid leave.

However if there is a need to retract or rescind the job offer then it is advised that:

• This is done in writing,
• Document within the letter the reasons for the offer being withdrawn (as this may be used as evidence to any potential claim)
• Provide payment in lieu of notice. This should be based on the notice the individual would have received if they had started work.

Final points

It is important to be aware that the reasons for withdrawing a job offer should not be linked to any form of discrimination related to a protected characteristic under the Equality Act 2010. Protected Characteristics included: Race, Gender, Sexual Orientation, Age, Disability, Gender Reassignment, Religion or Belief, Marriage and Civil Partnership and Pregnancy and Maternity.

If you would like advice on a matter of this nature please contact the Tamar HR team.