Withdrawing a job offer

In ancient scripture it was said that “the Lord giveth, and the Lord taketh away”. But he never got embroiled in legal proceedings for doing so. 

In the UK, a recent case from the employment appeals tribunal (EAT) has found that once you “giveth” a conditional job offer, you are at risk if you “taketh” it away for an unrelated business reason. And there can be similar risk here in Ireland.

What are the technicalities?

Broadly speaking, you can give either conditional or unconditional job offers. 

An unconditional job offer will generally become legally binding once it is accepted. You may still have to pay notice, or damages equivalent to it, even if this is before they have started.

More commonly, conditional job offers are made. As you can imagine, the conditions would often be:

• Subject to satisfactory references
• Subject to background and permission to work checks
• Subject to the passing of a probationary period

You might think that until these conditions have been met, a contract is not formed. However, this comes down to how carefully drafted your job offer wording is. Is it clear enough that there are true pre-conditions to employment rather than matters operating after contract formation?

If it is not, then you may face a breach of contract claim. You may have to pay notice or damages equivalent to notice, depending on the contract and circumstances.

Furthermore, equality law still applies at this time. So if you were to withdraw a job offer for a reason connected with one of the protected grounds stated under the Employment Equality Acts this could give rise to liability regardless of any other breach of contract.

So what does this mean for your recruitment?

While few employers will hand out job offers only to withdraw them for unrelated business reasons willy nilly, it is important to be aware of this issue so you can make more informed recruitment decisions.

We think the practical steps you should take right now are:

• To understand that there is risk around withdrawing job offers after they have been accepted but before employment starts.
• Review your existing conditional job offer wording to check what you are actually saying to candidates.
• Be clear about notice periods at the job offer stage, not waiting until day one of employment.
• Clearly stating whether conditions are intended to delay the formation of a contract or allowing for termination after one has commenced.

Help from The HR Dept

This spotlight shows how complex apparently simple aspects of employment can be, and why for SMEs it pays to have some HR expertise on your side. 

We can help in this matter either as a one-off review and tidy up of your recruitment processes, or using our retained Advice Line services where we provide correct documentation and email/telephone advice when asked as a matter of course. 

Better still, when you sign up to Advice Line, you get tribunal indemnity insurance, offering you legal protection so long as you have followed our advice from the start of any issue.