Can an employer withdraw an offer of employment once made?
There may be good reasons to withdraw an offer, for example, an employer’s business needs have changed, or they unexpectedly received information about the applicant which causes them to question their desirability.
An offer of employment can be withdrawn at any time before it has been accepted by the employee without having to give notice or make a payment in lieu of notice. The employer will need clear evidence that it withdrew the offer before the employee had purported to accept it, and the withdrawal should be communicated in clear terms to the prospective employee.
If the employee has already accepted an offer, an employment contract will (or may) be in existence. In these circumstances, the only way for the employer to terminate the contract may be to give the employee the notice to which they are entitled under the contract or make a payment in lieu of notice (if there is a contractual right to do so).
However, if an employer withdraws an offer, an employer is likely to face a disappointed job applicant who potentially alleges that the employer’s reason for doing so was unlawful. This might be the case for the following reasons:
- If it were an act of discrimination, because job applicants are protected from discrimination.
For example, if a prospective employer withdraws a job offer because it discovers the candidate is pregnant, this can amount to maternity discrimination. It is unlawful for an employer to discriminate by treating a woman unfavourably during the protected period, which is from the beginning of pregnancy to the end of maternity leave (and potentially beyond – see further information on this and the other employment law changes which came into effect in April here) because of her pregnancy.
In Lee v R&F Properties QS UK Co. Ltd an employer was found to have directly discriminated against a woman whose job offer was withdrawn after the employer asked the ages of her children (four and nearly one) and after she had signed an employment contract.
In Ngole v Touchstone Leeds an employer withdrew a job offer after discovering that the applicant had made homophobic Facebook posts. A tribunal concluded that withdrawing the role was a disproportionate response and directly discriminatory. A non-discriminatory approach would have been to first give the applicant the opportunity, in light of the Facebook posts, to provide the employer with assurances about his suitability for the role.
- Unless the employee has previous relevant continuous service (for example, with the same or an associated employer), they will not have sufficient continuous service to bring an ordinary unfair dismissal However, there are certain exceptions.
For example, most claims for automatically unfair dismissal can be brought where an employee does not have two years’ continuous service.
Consequently, employers would be well advised to document their reasons for withdrawing an offer (ensuring those reasons are lawful) and retain documentary evidence that supports the reasons for the decision reached. It may also be appropriate to undertake some further discussions or investigation with the applicant before withdrawing the role.
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