Withdrawing an Employment Offer
Many employers will be familiar with the scenario in which they offer a job to someone, only to then find out that they no longer have a need to take on that individual.
If the individual has not accepted the job offer, the offer can be withdrawn. Employers should document the reasons for withdrawing their offer, with supporting evidence, to help rebut any argument that the withdrawal was discriminatory or unfair.
The acceptance of a job offer may be clear but it can be implied through knowledge the employer has about the individual and through actions that the individual has taken. For example, the employer could be aware that the individual has handed in their notice to an existing employer. That may suffice as an acceptance.
Some job offers are conditional on certain requirements being met, such as a satisfactory reference or an acceptable DBS check. If a job offer has been accepted but the conditions have not been fulfilled, the offer can be withdrawn.
Unfortunately for employers, where a job offer is accepted (and there are no conditions attached to the offer) the position is different. An employment contract has been created at the point of acceptance, regardless of the fact that the individual has not started their first day of work or that they may not have received a written employment contract.
After acceptance, it is not possible to “withdraw” the offer. Technically, to end the employment, the employer has to serve notice and make the respective notice payment. The employment contract may state that during and at the end of the probationary period either party can end the contract on a shorter notice period. If the individual has had this information communicated to them, they will arguably not have started their probationary period when the offer is withdrawn as they have not had their first day at work. This means that there is a argument that the notice period that applies will be what the notice would be in the absence of a probationary period.
In practice, many employers do withdraw unconditional offers that have been accepted without consequence as no claim for unfair dismissal can be made. The recourse for the individual, who should have received a notice payment, would be to sue their employer for breach of contract. As there is a fee to issue a claim, many individuals will not consider it financially possible or worth the hassle to pursue. It should of course be borne in mind by employers that individuals could still bring a claim for discrimination on one or more protected grounds (such as that the reason there is no longer a role for them is as a result of their age, religious belief or sexual orientation).
Employers should therefore consider how best to communicate the decision that there is no longer a role for the individual after acceptance of the offer of employment. In any event, the reason for there no longer being a role for the employee should be documented in order to evidence that the reason is not a discriminatory one.
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