Can a job offer be withdrawn?

With lockdown and the increased pressures related to working during the pandemic, retaining and recruiting employees in the early years sector has hit a crucial point. Some parts of the country are in a recruitment deficit, having fewer applicants respond to advertised roles. To compound this, the government has increased the number of funded hours to parents.

In acknowledgment of the shortage of early years educators and the need to plug this gap, the government announced the Do Something Big campaign at the beginning of February this year. In total, there are 19 local authorities participating in a pilot project that offers new recruits a £1,000 bonus when they start their first role in childcare and early education.

However, due to the lack of suitable candidates when recruiting, dilemmas may arise where a setting believes that it has found the perfect match but subsequently discovers that it needs to extract itself from the relationship. How to do so presents additional challenges. Offering a job to a candidate creates a legally binding contract if it is then accepted. How, or whether, an employer can extract themselves depends upon the circumstances surrounding the offer.

If an unconditional job offer is made and accepted, then even though the candidate has not started work, the agreement can only be ended by giving notice. The amount of notice to be given may have been communicated verbally, in a job offer letter, or if notice was not discussed it would arguably be one weeks’ notice under the Employment Rights Act 1996. This must be paid alongside damages (if applicable) for the loss of any other contractual benefits.

If, however, the employer makes a conditional job offer and those conditions are not met, then the employer is not ending the contract and is instead withdrawing their offer. A withdrawal is appropriate because the job offer is not determined unless the stated conditions are met.

Common conditional offers made in the early years sector could be making a job offer subject to:

• Satisfactory references 
• DBS check 
• Proof of qualifications 
• Right to work checks

However, if a setting allows the candidate to work whilst they secure that information, then notice to terminate the relationship will have to be given because the contract has started.

If a job offer has not been accepted, the employer can withdraw it with no consequences but there is a word of caution – an employer will need a clear paper trail to show that this is the case. It is therefore important to ensure that there were no oral offers of employment or ambiguous communications – for example, discussions of salary range without discussing the employment start date which might infer that a contractual relationship is there.

If an employee requests that their employment start date be delayed, then generally speaking, this will need the consent of the employer. However, there are circumstances where the employer may need to seriously consider consenting to such a request due to the context – for example, if the employee’s child is sick or they are themself unwell and have declared a protected characteristic.

In both examples, it would be unwise of the employer to decline the request as employees have the right to take unpaid time off for a family emergency, and to decline a start date due to sickness linked to a protected characteristic could be seen as an act of discrimination under the Equality Act 2010.

In the first instance, absences for the above may be managed by exploring the situation further. It may be the case that there is a spouse, cohabiting partner, grandparent or other close family member who could look after the sick child, or it may be that the illness is transient, and the employer can tolerate this. If the candidate has a protected characteristic, then delaying a start date will be a reasonable adjustment; however, if there are concerns that this may become protracted then matters will need to be managed diplomatically and carefully.

One option may be to communicate the business reasoning behind why the candidate needs to start their job, giving a deadline by which they should do so. Alternatively, it may be the case that the employer suspects that a protected event is being used as cover for the absence. Both dilemmas are thorny issues and bespoke advice will need to be taken from the LawCall service.

If the employer wishes to delay the start date (possibly due to changes within the business), how this can be resolved also depends upon the circumstances. In the first instance it is preferable if the employer can negotiate the required change. Where there is no contract in place, then the employer may withdraw the original offer and replace it with the later start date. If a contract is in place, it would be prudent for the employer to ensure that they have preserved the right to vary terms and conditions of employment, (usually by giving notice) and then rely upon these terms and conditions to impose a change. If none of these apply, then the employer may have to consider terminating the agreement on notice and re-engage that person with the new start date.

It would therefore be prudent to ensure that any job offers are:

1. set out in writing, preferably in the form of a job offer letter which should also explain whether the job offer letter forms part of the settings terms and conditions of employment.

2. clearly set out any conditions that apply to the offer.

3. the start date, probationary period and notice.

4. steps the candidate need to take to formally communicate their acceptance of the offer.

All Alliance members can contact the team at Law-Call for legal advice. You can find their contact details in the members’ area of our website at portal.eyalliance.org.uk.