Can you withdraw the job offer?

You have just finished interviewing a candidate and you are convinced that you have found the perfect candidate. However, after you post the offer, you discover something that concerns you…  

You decide you need to withdraw the job offer. Can you do this?

Well, this will ultimately depend on whether you made the applicant a conditional or unconditional job offer.

Unconditional job offer

An employer can withdraw an offer at any time until it is accepted. This means that once the applicant has accepted an unconditional job offer, there is a legally binding Contract of Employment between the employer and the applicant. If you decide to not hire the individual, they can take legal action against you for ‘breach of contract’.

They may claim that they have suffered loss, especially if they resigned from their previous role in order to take up your job offer.

They may be entitled to damages or compensation in line with their notice period. This is the time for which they would have been employed before you would have been permitted to dismiss them. This can be extremely expensive, especially in the case of employees in senior or managerial roles who have long notice periods.

Applicants are protected from being discriminated against during the recruitment stage. Therefore if you withdraw the job offer for a discriminatory reason, there would be other losses the applicant could claim too.

Conditional job offer

A conditional job offer can be withdrawn if the applicant does not fulfil all the conditions of the offer. The conditions could include satisfactory references, a criminal record check, a qualifications check or a health check.

However, if the applicant does meet all the conditions and you decide to withdraw the offer, the applicant can take legal action against you for breach of contract.

Again, you should not withdraw a job offer on the basis of a discriminatory reason. If you have made a conditional offer and found their health condition constitutes a disability, you must be very careful when deciding to withdraw a job offer. Withdrawing a job offer simply because the medical check shows the applicant has a disability is likely to constitute direct discrimination.

Think before you act

In any case, make sure you are making the right decision. You must always think thoroughly about the applicant’s suitability for the role before you decide to make a job offer. Ask yourself if they have all the relevant qualifications, skills and personal characteristics needed for the role? Will they be able to get on with the rest of the team?

If you need employment law advice this topic, please contact your Employment Law Adviser who can give you all the guidance and support you need to handle this HR challenge.

 

Director of Legal Services

James Tamm

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