Well, well, well…me again – Force of Nature/Emma Tice/whatever else you want to call me (I answer to most things!) I have a LOT to update you on, and that is before we get to the legal update part. So, grab a brew, get comfy – here goes.
Shucks, I now feel that I have built this up way too much and need to backtrack! You may have noticed my out of office was on last week. That was because the Tice clan were off on holiday (again, yes we only went at Easter I know, I know, but we firmly believe in work life balance here and for Rob and I taking regular breaks away with the family is key to that for us). First, a shout out to our amazing team who manned the fort for us whilst we were away – they are genuinely, real life super heroes! I remember our first holidays at Precept – they weren’t really holidays, just working in a different location! How far we have come in such a short space of time and what an amazing bunch we have gathered along the way!
Back to our travels – Looe, Cornwall was our destination this time around. This happens to be our all time favourite place on the planet! It has everything you could want – beaches, a harbour, coastal path, arcades, boat rides, crabbing, ice creams…the list goes on! Whilst the weather didn’t play ball (ironic as we decided to go in May over August this year to get the better weather and miss the traffic – we didn’t have great weather AND traffic was awful!!) it didn’t dampen our spirits. Highlights included LOTS of sea time in all weathers (including the rain), climbing up and jumping off rocks, rock pooling, catching 41 crabs in one sitting (all of which were returned) and a sneaky extra trip to St Ives for a certain someone’s 50th birthday treat!
All in all an amazing week of family fun, that is what life is about isn’t it? And, despite not arriving home until 11pm on Sunday evening, Rob and I were straight back into. I CANNOT tell you the difference between returning to a job you love over my serious holiday blues in the past.
But, whilst I could blabber on for pages, that isn’t what you come here for. You want the juicy bits of employment law/HR news….so out of holiday mode Emma…
This week, we are looking at whether you can withdraw an offer of employment. So, imagine the scene if you will… you’ve been through the interview and selection process and then made your offer, BUT, something then changes, internal needs for the additional support are no longer there, or you receive an unsatisfactory reference or something else comes to light which means you need to withdraw the offer, but can you do this?
As we always say, you can do what you like. But looking at this through a legal lens – the main risk for you here is that the individual in question may be able to bring a breach of contract claim against you for withdrawing the offer, even if that employment is not due to begin for a number of weeks or even months in some cases. This could be the case even if there hasn’t been signature on a contract. Whether they will be able to pursue a claim will depend on whether there was a clear offer made, and a clear acceptance of the offer (and whether there were any conditions attached to that offer).
It’s important to note that this offer could be verbal or in writing – we would always recommend that any offers of employment are made in writing so that you can be crystal clear about the intentions and any conditions attached to the offer of employment. This is particularly necessary where an employee needs to have certain qualifications for example, or pass a DBS check to able to do the role they are applying for.
The most common condition seen is “satisfactory references.” This can be very subjective, so you need to think about what you actually mean by this. Do you just want to have the confirmation that they worked there, or do you need a more positive comment on performance or attitude? It’s important that you set this out clearly in the offer letter. (Give us a shout if you need a template!)
It would be more difficult to withdraw an offer of employment where that offer has been accepted, and then you have an “off the record” call with their former employer, or gossip starts about this employee that means you no longer wish to employ the individual. As I say, in these cases, you would be in a much more difficult position to withdraw. But all is not lost, if you find yourself in this position, get in touch with us and we can see how we can help. One quick tip is to make sure you’re giving the individual the notice they would otherwise have been entitled to under their contract that you are withdrawing the offer.
Remember, the potential compensation here for this breach of contract claim is going to be relatively low, usually limited to the short one/ two week notice period that you get during a probationary period, but obviously that isn’t always the case – so check your contracts! Again, clear evidence will be needed to show this, so you need a clear paper trail of the offer and the conditions, bearing in mind you may need to withdraw the offer!
You also need to be alert to any potential discriminatory reasons which could be raised if you withdraw an offer, as a candidate does not need to be an employee to be able to bring these types of claims against you. The Equality Act applies to job seekers – never ever forget that and discrimination claims would potentially attract a higher amount of compensation. So (oh I sound like a broken record, don’t I? Do I spin you right round, baby, right round?) make sure you’ve got a proper paper trail as to why you’re withdrawing the offer. That way you can combat any pesky discrimination arguments.
If an offer has been made, and not yet accepted, then you are going to be fine to withdraw the offer, this will obviously be very time sensitive so it’s important to act quickly and again you need to be crystal clear with the individual that the offer is being withdrawn and we recommend that you set this out in writing! You need to ensure that you can show that the individual received the notification of the withdrawal too, so perhaps turn on the delivery notification on outlook, or send a letter recorded delivery, and keep hold of the documents!
The main take away? Maybe now is the time to review and update (in some cases overhaul or even introduce) really clear recruitment documentation. At Precept we believe in keeping things simple, so these documents don’t need to be long or convoluted. But they DO need to cover all the right things. We can help with this by providing you with templates or perhaps auditing your current documents? Best to get things started in the employment relationship in the way you mean to go on…give us a shout if we can help…you will find me day dreaming of the Cornish Coast, whilst simultaneously making plans the coming months at Precept!
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