As an employer, there may be times when you wish you could retract an offer of employment after you’ve made it. We explain what you can and can’t do.
Here at Anne Corder Recruitment, we’re sometimes asked by employers whether they can withdraw a job offer after they have made it to a candidate they wanted to hire.
In some cases, an employer wants to do this because of external circumstances that mean they no longer need or can afford to take on the new employee. Other times, it may be because they haven’t received positive references from the candidate’s past employers or because the candidate hasn’t passed their vetting process. And on rare occasions, it can simply be because they feel they have found someone better for the role.
Whatever the situation, it’s important to realise that there are legalities around what an employer can and can’t do in relation to job offers.
As employment experts, we’re going to outline here what these are so you know what’s permitted – and what’s not – should you ever need to retract a job offer.
Conditional and Unconditional Job Offers
The most important thing to know is that there are different legal circumstances for conditional and unconditional job offers, so we’ll start off by explaining what these two different types of offers are.
Conditional job offers
A conditional job offer, as the name implies, is an offer of employment that is dependent on certain conditions being fulfilled or met by the candidate. In most cases, these conditions relate to the candidate’s past history or suitability to do the job advertised, and often involve the following types of background checks:
- A criminal record check – most commonly a DBS (Disclosure and Barring Service) check offered by the government
- Medical and health checks
- References from past employers
- Proof of academic qualifications and other certifications or awards
- Proof of right to work in the UK
Conditional job offers are usually dependant on all these checks – or the ones requested for the role – being carried out successfully and not revealing anything that the employer believes will impact the candidate’s ability to do the job or questions their honesty and integrity.
Unconditional job offers
Unconditional job offers are offers made that aren’t reliant or dependant on any checks being carried out on the candidate. An employer may make an unconditional job offer to a candidate if, for example, they already know them or if they have been recommended to them by someone they trust. Or it could be the case that the candidate already works for them but has applied for a different role in the company.
The Legal Situation
In the case of unconditional job offers, an employer is legally permitted to retract or withdraw the offer of employment for whatever reason up until the point that the candidate accepts the job.
After this point, legal circumstances change, as detailed below.
As explained in the article ‘When does a company need to provide a contract of employment?’, as soon as a candidate accepts an unconditional job offer from an employer, they have a legal ‘contract of employment’ with them, which, in various ways, sets out the terms of employment.
Acceptance of the job from the candidate doesn’t have to be in writing; verbal confirmation that they accept the job is also legally binding. So if a candidate accepts an unconditional job offer, perhaps during a ‘phone call telling them they have been offered the position, this counts as the point from which they have accepted the terms of the ‘contract of employment’ with the company. The fact that the offer wasn’t made in writing, and the candidate has just verbally accepted it, is irrelevant in the eyes of employment law.
This means that should an employer no longer want to take on the candidate after they have accepted the job but not started in the role, they can’t simply withdraw the offer made. Instead they would need to follow the terms set out in the employment contract in relation to terminating the employment or face a potential claim for breach of contract in an employment tribunal.
For conditional job offers, the employer can retract the job offer even after the candidate has accepted it (in writing or verbally) if the checks that were requested reveal or highlight something that may prevent them doing the job.
For example, the employer may discover that the candidate has a criminal record that they didn’t know about or are physically unable to do the job because of a medical condition. Or the qualifications or accreditations they claimed to have to meet the selection criteria, proved to be a lie.
In these cases, the candidate hasn’t met the conditions of the job offer, and hence the employer is legally permitted to withdraw the offer without any consequence. But they can’t retract the offer for any other reason than the conditions they set out when they made it to the candidate.
And it’s important to note that if a candidate can prove that they satisfactorily met all the conditions required, they could potentially take legal action against the employer if the offer is withdrawn.
Discrimination
Regardless of whether a job offer was unconditional or conditional, employers are prohibited from withdrawing it if that decision was based on any form of discrimination.
Employment law states there are nine ‘protected characteristics’ which are illegal to discriminate against, as follows:
- Age
- Gender reassignment
- Being married or in a civil partnership
- Being pregnant or on maternity leave
- Disability
- Race including colour, nationality, ethnic or national origin
- Religion or belief
- Sex
- Sexual orientation
So if an employer decides to withdraw an offer because they discover, for example, that a candidate is pregnant, this would be on the grounds of discrimination and the candidate could make a claim to an employment tribunal.
What if the candidate changes their mind
If a candidate accepts a job offer and then changes their mind – regardless of whether it was a conditional or unconditional offer – the employer could sue them for breach of contract or make them work out a contractual notice period.
But in most cases, employers will want to avoid this, so will politely accept that the candidate no longer wants to work for them (or is unable to do so) and will instead find another suitable candidate for the role.
Conclusion
Although it is legal to withdraw job offers in certain circumstances, employers need to ensure this is done before the candidate has accepted an unconditional offer or because they haven’t met the requirements of a conditional offer.
Retracting an offer outside of these guidelines, or because of discrimination, risks them being taken to an employment tribunal, which could lead to financial and reputational damage.
For this reason, it’s always a good idea to speak to recruitment experts when you’re considering making job offers for your business.
