As an employer, it’s never easy deciding whether to withdraw an offer of employment. You may have found a more suitable candidate, or maybe you’re no longer in the position to take on another employee. But if you’ve decided to take this course of action, there are several key factors to consider.
There are different procedures to follow depending on whether the job offer was conditional or unconditional and whether the offer has already been accepted. Following the correct processes will help you to protect your brand reputation, whilst reducing the risk of being hit by claims that may end up being heard in an employment tribunal.
So, are you thinking about retracting a job offer and you’re unsure of the next steps? Not to worry, we’ll answer any questions you may have in this article.
Essentially, the answer to this question is that you can, but you should consider a number of factors to evaluate the risk that you may be placing your business under.
If the candidate has already accepted the job offer, then no, it can’t be withdrawn. This is because the contract was formed (and became legally binding) when the applicant officially accepted the offer. In this situation, the contract of employment would need to be terminated if you no longer want to hire them.
Job offer letters should include information such as:
If all of the right information was included in the job offer letter and the candidate accepts, you won’t be able to withdraw the offer of employment. However, if (for example), a start date wasn’t agreed, then it could be argued that the contract hadn’t been formed.
You can withdraw a conditional job offer if any of the conditions haven’t been met. The conditions should have been identified clearly to the candidate, ideally in writing. Some examples of conditional employment offers include:
It can be tricky to withdraw an unconditional job offer once it’s been accepted. In most cases, you’ll have to terminate the contract of employment. This may leave the company exposed to potential claims – for example, a breach of contract claim.
You’ll need to follow the right steps when retracting a conditional job offer. If the applicant didn’t fulfil the necessary conditions of the offer, you should be able to retract the offer easily. You can do this by:
However, care should still be taken, particularly if the reason for withdrawing the offer could be considered to be discriminatory in any way (for example).
You can retract an unconditional job offer that hasn’t been accepted by the applicant yet. Withdrawing the offer should be straightforward – simply follow the same steps as above and clearly state your reasons in writing. If the offer has been accepted, you’ll need to terminate the employment contract instead. It’s worth noting that this isn’t straightforward, with potential claims for breach of contract to consider, as well as any claims for discrimination if the reason for the withdrawal was because of a protected characteristic. So you should always seek advice before going down this route.
So long as your reasons for withdrawing an offer are fair and non-discriminatory, you shouldn’t have any problems. However, once an offer has been accepted any withdrawal should be done so with caution and you need to be aware of the risks just in case.
If you withdraw an accepted job offer based on any of the above factors, you could be hit with a costly discrimination claim where damages are uncapped. There are other claims that could be brought too, including a breach of contract claim.
Our team can support you through every stage of the recruitment process and help you avoid having to withdraw an offer in the first place.
Work with our employment law experts to create legally sound job offer letters, contracts of employment and outline the right terms and conditions for the role. We’ll also provide you with employment tribunal support (as long as you followed all of our advice) if you become subject to a claim as a result of withdrawing an employment offer.
If you’re an existing client and would like some support on this matter, simply call our advice line on 0345 844 4848.
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