There might be a number of reasons why an employer would want to withdraw an offer of employment. For example, its business requirements may have changed so it no longer has any need for the person/role it had offered a job to. Or, one of the matters expressed to be a condition of the contract (satisfactory references, or valid immigration status for example) may not have been fulfilled. Or the employer may have received information about the individual which has cast doubt on the desire to recruit them. Is an employer able to withdraw a job offer?
Is there a contract?
The starting point is to consider whether a contract of employment has come into existence. This will be the case once the offer is accepted by the candidate and any conditions to which the offer was made subject have been satisfied.
Note that a letter accepting an offer takes effect once it is posted, whilst withdrawal takes effect once it has been received by the individual. So if you send a letter withdrawing a job offer and it crosses with a letter sent by the individual accepting it, it is likely that a binding contract will be in existence.
If there is a contract in place, it may only be terminated in accordance with its terms. That is, serving notice to terminate the employment. In most cases, the first few months of employment will be a probation period with a relatively short notice period, so the cost to the employer of doing this should not be significant.
Failure to terminate in accordance with the contract would constitute a breach of contract, for which an employee can sue for damages either in the Employment Tribunal or civil courts. The amount of damages would typically be the net salary and cash value of any benefits the individual would have received during his/her notice period. However, loss in respect of the breach will normally only begin to accrue after the date the individual was due to start work.
Here are a few tips to think about when considering withdrawing a job offer:
Job applicants are protected under discrimination legislation. However, the Court of Justice of the European Union (CJEU) has recently held in a case referred from Germany that vexatious job applicants who apply for positions not to gain employment but to gain the status of job applicant so as to bring discrimination claims are not protected by EU discrimination laws (Kratzer v R+V Allgemeine Versicherung AG). The unsuccessful job applicant in that case demanded compensation for age discrimination when his application for a trainee position was rejected. He refused to attend an interview he was later invited to (the company said his application was rejected in error) and brought discrimination proceedings against the company. He then claimed further compensation for sex discrimination when he discovered that the trainee posts had been offered to women. The CJEU held that becoming a job applicant for the purpose of bringing discrimination claims and seeking compensation (as opposed to obtaining employment) is outside the scope of the relevant Directives.
You can register online or follow us on Twitter or LinkedIn to receive our latest news, events and publications.