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A job candidate may look perfect, but sometimes even the most promising relationships can go sour. James Green considers some difficulties that can arise when you want to withdraw an offer of employment.
We have made an offer of employment and our preferred candidate has accepted. However, our business requirements have changed. Can we simply withdraw the offer if she has not started work yet?
Surprising though it may be, the answer is unfortunately not. Once a candidate has accepted an unconditional offer of employment then a binding contract exists between employer and candidate, even if the candidate has not yet joined. If you do not proceed with the hire, then you will be in breach of contract and the candidate may be entitled to damages for that breach.
Many candidates in that situation will chalk it up to experience but, if you do get someone who is reluctant to walk away, the value of any claim would typically be the net salary and cash value of any benefits that the candidate would have received during her notice period. In many cases, particularly where the candidate is required to work a probationary period, that notice period may be relatively short. The position is more problematic with a senior hire who has a long notice period. In those circumstances the potential value of a claim could be high, although would be reduced if the candidate was able to obtain other work.
You should also consider the reasons why an offer is being withdrawn to ensure that these are not tainted by discrimination. Risks may be high if an offer is withdrawn following a medical assessment or if a candidate informs you that she is pregnant. It is good practice to document the reasons for the withdrawal so that you have evidence, should you need it, to counter any allegation of discrimination.
We have made an offer and the chosen candidate has accepted. However, she has delayed the start date a number of times and we have lost patience. Can we withdraw the offer?
You will not be able to simply withdraw the offer. Instead you will need to give your candidate a final deadline by which she must start, making it clear that if she has not joined by then, the offer will be withdrawn. It is sensible when making a written offer of employment to make that offer subject to a number of conditions. This means that an obligation to employ the candidate w