6th July 2015
Is it ever too late to withdraw a job offer?
4 min read
Can you withdraw a job offer that you have made and the candidate has accepted if your business requirements have changed?
Once a candidate has accepted an unconditional offer of employment then a binding contract exists between employer and candidate, even if the candidate has not yet joined. If you do not proceed with the hire, then you will be in breach of contract and the candidate may be entitled to damages for that breach.
Many candidates in that situation will put it down to experience but, if you do get someone who is reluctant to walk away, the value of any claim would typically be the net salary and cash value of any benefits that the candidate would have received during their notice period. In many cases, particularly where the candidate is required to work a probationary period, that notice period may be relatively short. The position is more problematic with a senior hire that has a long notice period. In those circumstances the potential value of a claim could be high, although would be reduced if the candidate was able to obtain other work.
Can you withdraw a verbal offer of employment that the candidate accepted by telephone?
A contract does not have to be in writing to be binding. Provided both parties intended to enter into a binding agreement when they were speaking on the telephone, this is sufficient to create a contract. In these circumstances, if you do not proceed with the hire then there is a risk of a claim for breach of contract as set out above. Whilst it is good practice to telephone a candidate to inform them that you wish to make them an offer it is important to make clear that a formal offer of employment will follow in writing and to explain any conditions that might attach to that offer.
If a candidate accepts your offer of employment but only if you increase the salary by £5,000 can you appoint another candidate instead?
Yes. If a candidate wants to accept an offer of employment then they must accept all the terms of that offer. If they accept some terms but propose a higher salary, then what the candidate is doing is making a counteroffer. In these circumstances, the employer can decide not to proceed with the hire because no contract exists between employer and candidate.
Your candidate has accepted your offer but now tells you she is pregnant and will need to start her maternity leave a few months into her new job. Can you withdraw the offer?
No. It would be unlawful discrimination to withdraw the offer because of the candidate’s pregnancy or her entitlement to take maternity leave, even if you have pressing business requirements. To avoid the risk of a discrimination claim you will need to proceed with the hire and make arrangements for maternity cover in the same way as you would for an existing member of staff.
If a candidate accepts your offer and delays the start date a number of times and you withdraw the offer?
You will not be able to simply withdraw the offer. Instead, you will need to give your candidate a final deadline by which they must start, making it clear that if the have not joined by then, the offer will be withdrawn.
When making a written offer of employment it is sensible to make that offer subject to a number of conditions. This means that the obligation to employ the candidate will not exist until all those conditions are satisfied.
Typically such conditions might include the need for satisfactory references, proof of qualifications, prove of the right to work in the UK and acceptance of standard terms and conditions. By making a conditional offer if you later receive an unsatisfactory reference, for example, you can lawfully withdraw the offer.
It is less common to include a requirement that the employee starts on or before a particular date but that can be included. You will need to take into account the candidate notice period in their current employment to avoid arguments that you are inducing a breach of contract.
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