Can an employer withdraw a job offer? It depends…
It is not uncommon for the circumstances of a business to change and as a consequence, it is necessary to withdraw a job offer.
The process of withdrawing a job offer is not without risk and will depend on the circumstances. In considering the process of withdrawing a job offer, it is important to understand that job offers can take various forms – for instance
Verbal job offer – an offer communicated verbally but without any further follow up correspondence in writing and specifically, no details of terms and conditions
Conditional job offer – an offer is made but it is conditional on specific requirements which might include references, DBS clearance, evidence of qualifications, health questionnaire etc
Unconditional job offer – an offer is made and effectively there are no conditions attached and often, if the job offer has been accepted, it is deemed that the contract is in place on the concept that offer plus acceptance equals contract.
Withdrawing job offers and medical questionnaires
It is not uncommon for a job offer to be made subject to the employee completing some form of pre-employment medical questionnaire. If an employee declares a medical condition on the form and the employer decides to withdraw the job offer on the basis of the disclosure, it is possible that the employer could be accused of disability discrimination if the condition that has been declared is such that it is afforded protection for disability discrimination – for instance Arthritis, Mental health conditions such as bi-polar but there are numerous other conditions.
In this situation, the employer must be aware of the possible risk of withdrawing a job offer and exercise caution.
Specific discrimination
If an individual believes that the job offer has been withdrawn due to a protected characteristic such as age, disability, sex/gender, race, religion, sexual orientation, the employee is likely to have a potential discrimination claim which would be heard by an Employment Tribunal.
It is also exceptionally high risk for an employer to withdraw a job offer in the event of pregnancy. This would be where in the time that has elapsed between making the offer and the employee starting, the new employer has learnt that the individual is pregnant and withdraws the job offer. Suffice to say – high risk.
Withdrawing a job offer due to poor references
In some employments, the reference must be provided prior to the employee commencing but invariably, the employee has already started when the reference is received.
Where the employee has not started but prior to commencement, a poor reference is received, the employer would be within their rights to withdraw a job offer if the offer was conditional on a satisfactory reference and the reference is deemed unsatisfactory. However, if the reference suggests that the employee had a high absence record due to mental health issues or a certain medical condition, proceed with extreme caution and be mindful of the potential risk of disability discrimination.
Has the individual suffered loss as a consequence of the job offer being withdrawn?
The worst scenario from the employee’s perspective is that they have resigned from a job where they had been employed for quite a long time and their prospective new employer withdraws the job and their old employer is under no obligation to allow the resignation to be rescinded. They are now without a job.
In that situation, the employee would be deemed to have suffered loss and in the event that this proceeded to an Employment Tribunal, these losses would be taken into consideration.
The counter argument is that a job offer is withdrawn prior to the employee having resigned from their previous employment and the employee has not suffered loss.
Similarly, if an individual has been out of work and then gets a job which is subsequently withdrawn, they have not suffered considerable loss although they may argue that when a job offer was made, they decided not to look at other opportunities which could have led to a job offer or could have turned down other job offers.
Are you obliged to give a reason for withdrawing a job offer?
No, but it is considered good practice. If there are genuinely compelling commercial business reasons for a job offer to be withdrawn IE loss of a major contract, investment or funding withdrawn etc – it makes sense for the employer to be honest and transparent about the reason for the job offer being withdrawn.
What can an employee do?
If an employee believes that a job offer has been withdrawn and all the conditions have been met IE references, medical questionnaire etc, the likelihood is that the employee would be able to bring a claim for breach of contract.
If the offer is withdrawn and the employee believes it is connected with a protected characteristic – race, sex, disability etc, the employee would probably bring a discrimination claim.
Such claims would be heard by an Employment Tribunal.
In conclusion, withdrawing a job offer can be quite a minefield and depending on the circumstances can give rise to claims for breach of contract and/or discrimination. It is therefore sensible for employers to seek advice prior to withdrawing a job offer so that the possible risk can be assessed.
If you want advice regarding any of the issues raised, either call 07885 714771 or e-mail – adrian@abhrsolutions.co.uk
