Employment Law Advisor and NPA Business Partner, Ellis Whittam, answers a recent question from a member

“I have made someone a job offer for a position in my pharmacy. However, circumstances have changed and I would like to withdraw the offer. The applicant has not started work yet and is not due to start for another two weeks. Are we allowed to do this? Can legal action be taken against us?” 

An employer can withdraw an offer at any time until it is accepted. Once the applicant has accepted an unconditional job offer, there is a legally binding contract of employment between the employer and the applicant. It does not matter that the applicant has not started work.

If you do not hire the applicant, they can take legal action against you for ‘breach of contract’. They may claim that they have suffered loss, especially if they have already resigned from their previous role in order to take up your job offer.

As they are due to start in two weeks’ time, it is more than likely that this is the case. They may be entitled to damages or compensation in line with their notice period – the time for which they would have been employed before you would have been permitted to dismiss them. In cases of employees in senior or managerial positions, this can be very costly as it could be equivalent to three or six months!

However, the situation is different if you have made a conditional job offer
to the applicant. A conditional job offer can be withdrawn by you if the applicant does not fulfil all the offer’s conditions. These conditions could include satisfactory references, a criminal record check or a qualifications check.

However, if the applicant does meet all the conditions and you withdraw the offer they can take legal action against you for breach of contract.

If the applicant believes that you have discriminated against them, they may
take you to an employment tribunal. For example, if they have evidence that you withdrew a job offer because you found out after a medical assessment that they were pregnant or have a disability.

It is very important that you consider carefully the reasons for withdrawing a job offer and think about the potential discrimination issues that could arise.

Whatever the reason for the change of circumstances, it is good practice to have thoroughly assessed the applicant’s suitability for the role before making an offer. If, for instance, you are hiring a pharmacist, think: do they have all the relevant qualifications, skills and personal characteristics needed for the role? Will they be able to get on with the rest of the team?

For quick and easy to understand advice on this topic, call the NPA Employment Advisory Service on 0330 123 0558 or email employmentadvice@npa.co.uk.