An offer of employment, once it has been unconditionally accepted by the candidate, creates a binding contract of employment. This is the case irrespective of whether anything has yet been committed to paper. If the employer intends that the offer is to be subject to meeting certain conditions or checks then this should be stated when the offer is made. Withdrawing an offer, once any such conditions have been met, will therefore be a breach of contract.
Where commitments have been made verbally during the recruitment and offer process, for example stating that a certain salary expectation will be met, these will also generally be binding on the employer.
Schools and colleges should therefore be clear internally who has the authority to make a job offer and what flexibility, if any, they have to negotiate over salary and other terms. They should also be sufficiently experienced and/or trained in the legal issues to avoid making potentially costly mistakes.
A verbal offer should always be followed up by a formal offer, listing the conditions attached to it and what action the employee must take to meet these conditions (such as applying for medical clearance).
For an offer of employment to be binding it must be unequivocally accepted by the employee. If he/she comes back with a counter-offer, for example asking the prospective employer for a higher starting salary, then the original offer will not be binding. If the parties cannot reach agreement on terms, therefore, the employer could subsequently go on to offer the role to someone else.
In circumstances where, following a conditional offer of employment, the candidate fails to meet one or more of the conditions attached (such as where unsatisfactory references are received) then the employer can withdraw the offer of employment without being in breach of contract.
In other circumstances where an employer might wish to withdraw an offer but it does not relate to the conditions attached, for example following the identification of a previously unexpected need to cut staffing levels, withdrawing an offer will entail certain consequences as the candidate could make a breach of contract claim. Compensation is generally limited to the financial equivalent of the notice period and it is common practice for the employer to pay this sum upon withdrawing the offer in recognition of the breach, thereby pre-empting any claim.
As previously noted, once an offer of employment has been accepted a binding contract of employment is formed. As such if the employee subsequently seeks to withdraw this will represent a breach of contract. Whilst – theoretically at least – the employer could therefore sue the employee for damages it is rarely financially in the employer’s interest to do so. The employer would need to be able to quantify its financial losses and, unless these are exceptional, taking action will generally cost more than the damages awarded. This is at least in part because, even if employment had commenced under the contract, the individual is in a position to freely resign at any time and could thus do so on day one of employment without being in breach of contract (provided he/she gave notice in accordance with the contract).
It is inadvisable to allow an employee to commence employment before all checks are completed, for example where references or the results of a DBS check are still outstanding. A conditional offer can only normally be withdrawn prior to employment commencing and if the employee starts work it can therefore be implied that the employer has waived the outstanding conditions. To end employment in such cases it would be necessary to go through a dismissal process including giving notice.
When an offer has been made on the understanding that an employee can start work on a particular date but subsequently he/she is unable to do so it is not necessarily clear-cut whether the employer can safely withdraw the offer.
Much will depend on the evidence of the contract between the school/college and the employee. If the start date is clear (as it will usually be for teachers) and the employee accepted the terms then he/she would generally be in breach of contract by not complying with the agreed start date unless the employer agreed to vary it. The employer could thus respond by terminating the contract. It is a question of fact and degree, however. A delay of a few days might not amount to a repudiatory breach allowing the employer to terminate. The absence would simply be treated as authorised or unauthorised leave. If the employee became ill before commencing employment, the contract would commence on the pre-determined date and the employee would be treated as off sick, even if he/she had performed no work under the contract: the sickness absence would fall to be managed in the usual way.
A delay of a few weeks may well constitute a repudiatory breach, particularly given the importance attached to teachers attending for the start of term, but it would be advisable to take specific advice on the circumstances. Either way it is important to warn the employee that you are intending to withdraw the offer if they cannot start on the pre-agreed date to give them the opportunity to change their mind or to explain the circumstances more fully, which may influence your response.
Where it is particularly important that an individual commences work on or by a particular date then this could be included as a condition attached to the written offer of employment.