It was to be Mary’s first job, she had recently graduated, and she was devastated. The job offer was pulled.
Wojciech left a good job that he took up 7 years ago when he came to Ireland from Poland. Now he was told the job was “no longer available” and he felt embarrassed about going back to the employer he had just left. But he had a mortgage and young family to take care of, and he was distraught and anxious.
These scenarios are not all that rare.
From time to time I have received queries from employees who have had the misfortune to have had an offer of employment withdrawn. The circumstances can vary widely from a situation where an unemployed person, like Mary, is offered a job to the individual, like Wojciech, who has succumbed to promises and blandishments and left a good, secure job to take up employment somewhere else, only to have the offer withdrawn.
There is also a wide variety in relation to the timing of the job offer withdrawal. It could happen prior to acceptance of the offer by the employee to the time just prior to the commencement of employment.
Timing of withdrawal
Firstly, if the employer withdraws the offer of employment before the employee accepts the offer there is no problem for the employer, and no recourse for the employee as there is no binding contract.This assumes, however, that the withdrawal was not by virtue of a discriminatory ground (there are 9 grounds of discrimination). Learn about discrimination in the workplace here.
A discrimination based claim arising from an interview or offer of employment is possible even in circumstances where the employee is unsuccessful at interview or has been successful but the job has subsequently been withdrawn. Normally, you have to be an employee to bring an employment related claim, but not in this situation of alleged discrimination.
Secondly, the employee has accepted the offer of employment but has not yet commenced employment. Once an offer has been made and accepted the long established principles of contract law apply. That is, is there has been and offer and acceptance of tha offer and the parties intended to enter into legal relations then a binding contract is in place.
However, that contract can be terminated in accordance with the terms of the contract. This would involve giving the employee the contractual notice period of the termination.
If the contract had a probation clause, and it contains a short notice period-for example one week-the potential exposure of the employer in a breach of contract suit would be only for one week’s salary and whatever benefits the employee would have been entitled to.
This gets more expensive for the employer if the notice period was, say 3 months, for the loss to the employee of withdrawal of the offer of employment would be 3 months salary plus benefits, if any.
Another factor to be considered is any other losses or costs that the employee has incurred as a result of the job offer withdrawal. The employee could, for example, have incurred costs in moving home or making other arrangements in reliance on the new job coming through. All of these costs and claims will have to be carefully considered by the employer in settling any claim by a disgruntled, disappointed employee, as they will doubtless be claimed in any breach of contract legal proceedings.
Written offer versus oral
The terms and conditions of the employment contract will be more difficult to prove if the offer of employment was only made orally. There is no problem, however, with a perfectly valid contract being established, even in the absence of writing, on the basis of oral/verbal representations.
However, proving the various terms and conditions, such as the notice period or whether there was a probation period will be far more problematic in the absence of any written note or memorandum.
Regardless of when the offer is pulled the employer would be well advised to keep good, clear records setting out why the offer has been withdrawn and which can be called upon to refute any claim of discriminatory treatment.
How can the employer protect herself? The use of pre-conditions is one effective way.
Pre-conditions
To avoid the problem of having to withdraw an offer of employment the employer should consider the use of preconditions-that is, making the offer of employment subject to certain requirements. These could include:
- The employee having the qualifications claimed
- Taking up of satisfactory references
- The employee can legally work in the jurisdiction
- The employee has any necessary licences or memberships or accreditations, if appropriate
- No issues arising from a restrictive covenant in a previous contract of employment
Ensure that you refer to whatever preconditions you want to impose in all correspondence to the potential employee, and that the letter of offer states clearly that the offer is subject to and conditional upon the satisfactory fulfilling of the pre-conditions.