This line manager briefing examines the issues that line managers should take into account, and the steps that they should take, when making a job offer.
This line manager briefing includes information on:
- Making the offer
- Conditional offers
- Criminal record checks
- Employing foreign nationals
- Medical examinations
- Terms and conditions of employment
- Reasonable adjustments for disabled employees
- Keeping in touch
- Test yourself
1. Making the offer
Before making a job offer, line managers should ensure that they have authority to make the offer. The manager should also consider when and how to make the offer, and be prepared to answer the candidate’s questions about the organisation and the role.
Prior to making a job offer, the line manager should check with HR and/or a more senior manager that he or she is authorised to make the offer. For example, the board of directors may need to give final approval to filling the vacancy. The manager should also ensure that the terms and conditions that he or she is about to offer have been approved by the appropriate manager.
The line manager should contact the successful candidate to offer him or her the role as soon as possible after the conclusion of the selection process. Acting quickly creates less opportunity for the candidate to accept an offer from another employer, or lose interest in the recruitment process, thereby helping to ensure that the best person for the role is recruited.
Informing the successful candidate
The decision as to how to make a job offer rests with the organisation and the manager. There are advantages to telephoning a candidate:
- It lends a personal touch to the occasion, which can be persuasive if the candidate is unsure about whether or not to accept the offer.
- It allows the manager to answer any questions that the candidate may have.
- Speaking to the candidate ensures that he or she receives the offer. If the manager makes an offer by email, for example, until the manager receives a response to the email, he or she may not know if the candidate has received it.
The manager should telephone the candidate in a private room, so that details of the offer remain confidential. When telephoning the candidate, the manager should have to hand relevant information about the organisation and role, including:
- contract type, for example whether it is a permanent or a fixed-term contract;
- start date, which may depend on whether or not the candidate has to work a notice period;
- job title or job description;
- working hours; and
- career prospects.
If the offer is conditional, the manager should explain this (see 2. Conditional offers).
|When phoning a candidate to make a job offer, the manager should take notes to create a record of what has been offered and agreed.|
The candidate may need time to consider the offer before accepting or rejecting it. In these circumstances, the manager should specify the date by which the candidate should make a decision and how the candidate should communicate his or her decision to the manager, for example by telephone. A few days should be sufficient, but how quickly the manager needs to fill the role may dictate the time frame.
The preferred candidate should not be given too long to make his or her decision because the manager may have second- and third-choice candidates whom he or she would not want to lose and who may be considering other offers.
The manager should explain that he or she is available to discuss any queries that the candidate may have in the meantime.
If the candidate accepts the role, the manager should follow up the offer with a formal letter setting out the terms of the role (see Obtaining a signed employment contract). The letter should be marked “private and confidential” and should be sent to the candidate’s home address (or, if different, the address to which the candidate has asked the organisation to send correspondence) rather than to his or her work address. The manager should liaise with HR to prepare the offer letter.
|Dos and don’ts|
Do offer the candidate the role over the phone in the first instance.
Do be positive and enthusiastic, and respond to any questions or concerns that the candidate may have.
Do give the candidate a reasonable time period to consider the offer.
Do explain the main terms and conditions that apply to the role.
Do make clear that the offer is subject to conditions, if appropriate.
Don’t pressurise the candidate to accept the offer immediately.
Don’t make rash promises.
Don’t respond to any of the candidate’s queries until you are confident about the answer.
Informing unsuccessful candidates
Line managers should inform all unsuccessful candidates who have attended an interview about the employer’s decision not to offer them the role. If the manager has second- and third-choice candidates, he or she should wait until the preferred candidate has accepted the role before informing them about the decision.
2. Conditional offers
When offering a candidate a role, line managers should consider whether or not it is necessary to attach any conditions to the offer.
A job offer becomes binding once the candidate has accepted it. If the manager attempted to withdraw the offer after it had been accepted, this would amount to a breach of contract entitling the individual to sue the employer for damages.
When making a job offer, the line manager should consider whether or not to make it subject to conditions. If a candidate accepts a conditional offer, this will give certainty to the employer and the individual, but the employer will be entitled to withdraw the job offer if the conditions are not met, without being in breach of contract.
The manager should specify a date by which the conditions need to be satisfied, to ensure that the process keeps moving. Further, the employee may not be prepared to resign from his or her existing role until he or she has an unconditional offer of employment.
The following are some of the most common conditions that employers attach to job offers:
- References: In most circumstances, it will be appropriate for a manager to make the job offer conditional on receipt of satisfactory references (see 6. References).
- Qualifications: Where the attainment of a certain qualification is relevant to the performance of the role, the line manager could make the job offer conditional on sight of examination transcripts, certificates or other documents verifying the candidate’s qualifications.
- Examinations: It may be appropriate for the manager to make the offer subject to the candidate taking and passing an exam, for example a driving test. In certain circumstances, the manager may specify additional conditions, for example passing the test on the first attempt or achieving a minimum score.
- Medical test: Some roles require the jobholder to have a certain level of fitness to perform the role effectively. The manager could require the successful applicant to undergo a medical examination to confirm his or her fitness for the role, but only if the test and the standard of fitness required are relevant to the performance of the job. The manager should take care where a medical test indicates that the employee is disabled (see 5. Medical examinations).
- Proof of right to work in the UK: If the organisation has not yet seen proof of the candidate’s right to work in the UK, it will be appropriate for the manager to make the job offer conditional on receipt of evidence of the candidate’s right to work in the UK (see 4. Employing foreign nationals).
- Disclosure and Barring Service (DBS) certificate: For some roles, for example jobs that involve working with children, the manager will need to make the job offer conditional on receipt of a satisfactory DBS certificate (see 3. Criminal record checks).
- Restrictive covenants: Some candidates, particularly those applying for senior or technical roles, may be subject to restrictive covenants on termination of their current role. Restrictive covenants place conditions on the individual’s future employment, for example he or she may be prohibited from working for a competitor for six months following termination of his or her current role. It may be appropriate for the manager to offer the candidate the role on the condition that he or she is not subject to any restrictive covenants preventing him or her from performing the role. The manager could ask for a copy of the individual’s employment contract to check whether or not any restrictive covenants apply.
Where conditions are attached to a job offer, the manager should explain this to the candidate and set out the conditions in writing. If the employer is responsible for making any checks, for example applying for references, the manager should ensure that these are conducted quickly.
Withdrawing the offer
If a candidate fails to meet one or more of the conditions pertaining to a conditional job offer, the manager may withdraw the offer. The manager should telephone the individual to explain that the organisation is withdrawing the offer and the reasons why, and follow this up in writing.
The manager should take notes of the offer process, what steps were taken to satisfy any conditions, and why the decision was made to withdraw the offer. This will help the manager to explain why the offer is being withdrawn. It will also help the organisation to prove that the withdrawal was made for good reasons in case the candidate argues that it was made for a discriminatory reason, for example that the employer has found out that the candidate is pregnant.
|Dos and don’ts|
Do telephone the candidate to explain why the offer is being withdrawn.
Do be sensitive and respond to any concerns that the candidate may have.
Do take notes during the call.
Do follow up the conversation in writing, giving a clear explanation of why you are withdrawing the offer.
Don’t get distracted from detailing the reasons why the organisation is withdrawing the offer.
3. Criminal record checks
Depending on the role for which the candidate has applied, the line manager may need to find out whether or not the individual has any criminal convictions before he or she can start work. Where relevant, the manager should make receipt of a satisfactory Disclosure and Barring Service (DBS) certificate a condition of the contract. (Prior to 1 December 2012, applications were made to the Criminal Records Bureau.)
Employers that are registered with the DBS can, in conjunction with the prospective employee, apply for a disclosure, which shows the employer the candidate’s criminal record.
Two kinds of disclosure are available to employers:
- Standard disclosure: This includes information about spent and unspent convictions and details of reprimands, cautions and final warnings.
- Enhanced disclosure: This includes the information provided by the standard disclosure and information about whether or not the individual is on either of the barred lists held by DBS (and therefore prevented from working with children or vulnerable adults).
The HR department normally deals with DBS disclosures. Which disclosure is relevant will depend on the role, and the manager should liaise with HR over what the organisation requires. However, line managers should be aware that:
- the organisation will normally conduct a DBS check only after having offered the candidate the role;
- the organisation should inform the candidate which type of check it requires and why;
- if a disclosure reveals that the candidate has a conviction, the manager should not discount him or her automatically; and
- it can take two to four weeks to obtain a DBS certificate, so the manager should ensure that it is applied for as soon as possible after the job offer is made.
Where a disclosure reveals that the candidate has a conviction, the manager should check the organisation’s policy on recruiting ex-offenders and discuss the situation with HR.
4. Employing foreign nationals
Employers should check that successful job applicants have the right to work in the UK, because it is a criminal offence to employ someone who does not have the relevant permission.
Before permitting an employee to commence work, the employer should check whether or not he or she has the right to work in the UK. HR normally deals with this aspect of the recruitment process, but line managers should be aware of the main issues that apply and ensure that checks are performed in a timely manner so as not to delay the recruitment process.
To determine whether or not a candidate has the right to work in the UK, the employer should:
- ask the applicant to produce original documents indicating that he or she has the right to work in the UK;
- check that the documents relate to the job applicant; and
- keep a copy of the documents.
The documents that candidates may provide as evidence of their right to work in the UK are specified by law. An individual needs to provide one document, or two documents in combination, from one of two lists known as list A and list B. List A documents provide evidence that the individual has the right to work in the UK indefinitely, for example a UK passport showing that the holder is a British citizen. List B documents provide proof that the individual has a limited right to work in the UK, for example a passport endorsed to show that the holder is allowed to stay in the UK and do the type of work in question.
The organisation will determine when it will check candidates’ right to work in the UK. For example, the manager may be asked to explain, during the offer process, that the employer requires documentary evidence of the candidate’s right to work in the UK before he or she starts work.
Line managers should not make assumptions about a job applicant’s right to work in the UK on the basis of his or her colour, race, nationality or ethnic or national origins, or the amount of time that he or she has lived in the UK. Less favourable treatment of a candidate on the ground of race will amount to race discrimination.
To help avoid discrimination, the employer should treat all job applicants consistently. It should ask all candidates to provide evidence of their right to work in the UK at the same stage of the recruitment process.
|Dos and don’ts|
Do check the applicant’s original documents providing evidence of eligibility to work in the UK, and make copies.
Do be consistent as to the point at which you request these documents during the recruitment process.
Do ensure that the job offer is conditional on receiving proof of eligibility to work in the UK.
Do explain to the candidate that he or she has not met the conditions of the offer, if the candidate is ineligible to work in the UK.
Do check the dates of any permission to work in the UK, and follow it up if the applicant’s permission is nearing an end.
Don’t subject candidates to the checking process or make judgments about their right to work in the UK based on colour, race, nationality or ethnic or national origins.
Don’t allow an individual to start work before confirming his or her eligibility to work in the UK.
5. Medical examinations
It is unlawful for line managers to ask job applicants:
- to answer questions about their health or a disability;
- to complete a medical questionnaire; or
- to undergo a medical examination.
before offering them a job.
There are limited exceptions to this rule. For example, line managers can make enquiries about a job applicant’s health to establish whether or not the employer is under a duty to make reasonable adjustments in connection with the recruitment process (such as providing a ground-floor interview room where the candidate is a wheelchair user), or to establish whether or not the applicant will be able to carry out an intrinsic function of the job after taking into account reasonable adjustments that could be made.
However, line managers can ask a candidate to undergo a health check once he or she has been offered the job. This is appropriate only where determining the individual’s level of fitness is relevant to establishing his or her ability to perform the role.
- should not single out disabled individuals for the medical test;
- should make taking the test and achieving the required level of fitness a condition of the job offer;
- should ask candidates to give written consent before undergoing any medical examination (and refer to HR for the rules that apply to obtaining the candidate’s consent); and
- should treat any information revealed as confidential.
Where an applicant refuses to undergo a medical examination, the manager will be entitled to withdraw the job offer, as long as the offer was made conditional on the applicant completing the test.
Where a medical test indicates that the candidate has an underlying health condition, the manager:
- should not withdraw the job offer immediately;
- should discuss the situation with the candidate;
- should seek further information about the nature of the health condition and the impact that it is likely to have on the individual’s ability to do the job;
- should consider what reasonable adjustments the employer could make to enable the individual to take up the post; and
- should, if withdrawing the job offer, explain this to the candidate over the telephone, and follow it up in writing, making clear the reasons for the withdrawal and what steps the employer took prior to reaching this decision.
Employers are not required by law to obtain references on a prospective employee. However, most employers do seek references on successful candidates, because they allow them to check some of the information that the candidate has supplied.
It is good practice for managers to conduct reference checks only after they have made a job offer to a candidate. This helps to ensure that selection decisions are objective, rather than based on a previous manager’s opinion, for example. Checking all candidates’ references prior to making a job offer will be a waste of time and resources.
Managers should make job offers conditional on receipt of satisfactory references.
Managers should obtain an applicant’s express consent prior to requesting a reference from his or her referees, because the candidate’s current employer may not be aware that he or she has applied for the role.
The manager should check the employer’s policy on obtaining references, which should set out the process for requesting references, including how to obtain the candidate’s written consent. For example, the employer may ask candidates to sign a statement on the application form confirming that they agree to the employer seeking references, or it may include a consent form with the offer letter.
The manager may receive a reference that contradicts the information provided by the candidate. For example, the dates of employment provided by the candidate and his or her employer might be different. The line manager should not assume that the prospective employee has given misleading information, or that he or she has done so deliberately, and the manager should seek an explanation from the candidate.
If the reference contains negative information about the applicant, the manager should observe the following guidelines:
- The manager should consider whether or not it would be appropriate to raise queries with the referee or the employee about the information contained in the reference. The manager could, for example, invite the employee to a further interview.
- If the information is of a factual nature, for example that the candidate failed to meet sales targets, the manager should consider whether or not it is relevant and, if it is, whether or not it is sufficient to render the individual unsuitable for the role.
- The manager should bear in mind that, just because someone is having a problem is his or her current role, it does not necessarily mean he or she will be unsuitable for the new post.
- Where a reference contains adverse comments based on opinion rather than fact, for example that the candidate lacks enthusiasm, the manager should consider the accuracy of the information and compare it to what he or she knows about the candidate. The information may have been influenced by personal dislike and may be irrelevant.
If, after careful consideration, the manager decides to withdraw the job offer, he or she can do so without breaching the contract, provided that the offer was made conditional on obtaining satisfactory references.
Line managers should note that employers are not, in most circumstances, under a legal duty to provide a reference, and that many employers adopt a policy of not giving references or giving only minimum information. Therefore, a failure to provide a reference or provision of a sparse reference is not an indication that the employee is not good at his or her job. In such circumstances, the manager may ask the referee to explain his or her organisation’s policy on giving references.
7. Terms and conditions of employment
Employees’ terms and conditions of employment should be contained in a written contract of employment.
Written statement of particulars of employment
Employers must put key employment terms in writing. The document that incorporates these terms is known as the “written statement of particulars of employment”. The employer needs to give a written statement to all employees who are employed for one month or more, within two months of the employee starting work.
Some of the items in the written statement need to be provided in one document, known as the “principal document”. These are:
- the names of the employer and employee;
- the date employment began, and whether or not any previous employment counts towards the employee’s continuous service with the company;
- the scale or rate of pay or method of calculating pay;
- the intervals at which the employee is paid (for example weekly or monthly);
- any terms relating to hours of work (including terms relating to normal working hours);
- any terms relating to entitlement to holiday, including public holidays, and holiday pay (in sufficient detail to enable the employee to calculate entitlement, including entitlement to accrued holiday pay on termination);
- the job title or a brief job description; and
- the place of work or, if the employee will be required to work at different places, an indication of this and a statement of the employer’s address.
The other items can be provided in instalments. These are:
- any terms relating to incapacity for work due to sickness or injury, including any provision for sick pay;
- any terms relating to pensions and pension schemes;
- the length of notice that the employee is entitled to receive, and obliged to give, to terminate the contract of employment;
- where the job is temporary, the period for which it is expected to continue;
- details of any relevant collective agreements that affect the contract;
- specified details relating to any overseas assignments; and
- details of the employer’s disciplinary rules and procedures, the person to whom the employee can apply if he or she has a work-related grievance or is dissatisfied with a disciplinary decision relating to him or her or any decision to dismiss him or her and the manner in which such an application should be made, and an explanation of any further steps in the discipline or grievance procedure.
If another document, for example the staff handbook or a relevant procedure, provides the relevant information in relation to sickness, pensions or dismissal, disciplinary and grievance procedures, the written statement can refer to this document instead of setting out the information, provided that the document is reasonably accessible to the employee. Similarly, the written statement can refer to any laws or collective agreements in respect of the notice terms.
Obtaining a signed employment contract
When a candidate accepts the employer’s offer of employment, the parties enter into an agreement, albeit an oral agreement if the offer is made and accepted over the phone. The employer and employee are not required to enter into a written contract of employment, but it is good practice for the employer to require the employee to sign a document confirming his or her acceptance of the terms and conditions of employment.
The written statement of particulars of employment is not an employment contract. However, as the employer is required to provide a written statement, it may prefer to have one document including the terms required under the written statement and any other terms and conditions of employment to avoid any dispute as to the terms of employment.
The line manager should liaise with HR with regard to the provision of the letter of engagement and/or employment contract. He or she should ensure that any oral offer, formal offer letter and employment contract are consistent in relation to the terms and conditions offered.
Drafting the contract
The HR department is likely to have a model employment contract. The manager should liaise with HR to review the contract, to ensure that it includes all of the terms and conditions governing the employment relationship, before HR asks the employee to sign it.
Some of the issues that the manager may need to check include:
- whether the contract is for a fixed or indefinite term;
- whether the contract is full or part time;
- the contract start date, taking into account any notice period to which the employee is subject;
- the salary and how often it will be reviewed;
- whether or not the employee will be entitled to a contractual bonus or commission;
- whether or not it is necessary to include restrictive covenants (which limit what an employee can do after the employment relationship has ended) and intellectual property, confidentiality and garden leave clauses; and
- whether or not to build in flexibility, for example in terms of job duties, working hours or location.
When a manager offers an applicant a job, the applicant may try to negotiate some of the terms and conditions of employment. The most common terms that candidates seek to negotiate include salary, commission, benefits (for example gym membership) and restrictive covenants (which limit what an employee can do after the employment relationship has ended).
Line managers should consider a candidate’s proposals in conjunction with HR and/or a more senior manager. The manager should give the individual a date by which the employer will respond.
It may be appropriate for the manager to agree to the candidate’s proposals where he or she is particularly keen to recruit the individual. In some cases, the manager may be unable to agree to all of the candidate’s suggestions, but may be able to reach a compromise. The manager could therefore review the contract as a whole to determine whether or not there is room for manoeuvre. For example, where a prospective employee asks for a higher salary, this may not be possible, but he or she may be prepared to accept an increased contribution to his or her pension plan.
When determining and/or negotiating employment terms, line managers should be aware of the prohibition on discriminating against employees with a protected characteristic, for example sex or race. Line managers should become familiar with the right to equal pay for equal work, because determining an employee’s salary has the potential to give rise to discrimination.
For example, where a male recruit asks for more money than the manager has offered, agreeing to this could discriminate against the other employees who perform the same role if they are female. If the manager is considering agreeing to more favourable terms, this should be based on non-discriminatory factors, for example skills or knowledge, and the manager should keep a written record of the decision-making process.
8. Reasonable adjustments for disabled employees
Employers have a duty to make reasonable adjustments to any provision, criterion or practice and to any physical feature of the premises that they occupy, where a disabled employee is put at a substantial disadvantage in comparison with employees who are not disabled.
Where a line manager makes a job offer to a disabled employee, he or she should liaise with the employee, HR and occupational health to ensure that all reasonable adjustments are in place prior to the employee’s first day. Putting in place reasonable adjustments may take some time, so the manager should make arrangements to prepare for the employee’s arrival as soon as he or she accepts the role. For example, installing voice recognition software on the employee’s computer may require the organisation to order specialised equipment.
9. Keeping in touch
Looking for a new job can be a difficult and sometimes stressful experience for candidates. Line managers should keep candidates abreast of the recruitment timetable and explain any delays. This can help to ease any pressure on candidates and demonstrate that the employer cares for its staff.
Often, several months elapse between the time when a candidate accepts a job offer and his or her first day in the new job. The individual may have to work out a notice period, may take a break between jobs, or may take time off to relocate. The manager should maintain contact with the employee during this period. The manager could:
- invite the employee to a work social function, for example a Christmas party or team lunch;
- invite the employee to any relevant training sessions or seminars;
- appoint a colleague to act as a mentor for the new recruit, giving the new employee the opportunity to ask questions that he or she may not want to ask the manager;
- send the individual information about any employee networks or social clubs;
- send the employee any internal news updates; and
- send the employee joining instructions for his or her first day, explaining what the organisation expects of the employee.
10. Test yourself
1. A line manager has made a job offer conditional on satisfactory references. The references are unsatisfactory. Which of the following steps would it be inappropriate for the manager to take?
- a. Invite the candidate to a further interview to explore any queries that have arisen following a review of the references.
- b. Withdraw the job offer immediately.
- c. Contact the referees to explore any queries that have arisen following a review of the references.
- d. Make a decision about whether or not to withdraw the job offer only after considering carefully the accuracy and relevance of the references.
2. Which of the following terms does an employer not need to include in the principal document when providing the written statement of particulars of employment?
- a. The length of notice that the employee is entitled to receive, and obliged to give, to terminate the contract of employment.
- b. The job title or job description.
- c. The scale or rate of pay or method of calculating pay.
- d. Any terms relating to entitlement to holiday and holiday pay.
3. Laurie is recruiting two new team members. She offers the roles to Farooq and Emma, and invites them to an informal open day before their first day to meet the team and show them around the building. Which of the following statements is correct?
- Laurie should tell Farooq and Emma that they will be required to provide proof of their right to work in the UK after completing their probation period.
- Laurie should ask Farooq only to bring proof of his right to work in the UK to the open day, because she is unsure whether or not he is a British citizen.
- Laurie should not ask Farooq and Emma for proof of their right to work in the UK to avoid discriminating against Farooq because of his race.
- As HR checked all interviewees’ proof of their right to work in the UK before their interview, Laurie does not need to ask Farooq and Emma to bring proof of their right to work in the UK to the open day.
4. Jasmine is a line manager with a vacancy in her team. After a round of interviews, she has decided that Siobhan is the best person for the job. What should Jasmine do?
- a. Email Siobhan to inform her that she has been successful and, if Siobhan fails to respond within two weeks, offer the next best candidate the role.
- b. Telephone Siobhan to inform her that she has been successful and, if Siobhan asks for time to think about the offer, give her as long as she likes to make a decision.
- c. Telephone Siobhan to inform her that she has been successful and, if Siobhan asks for time to think about the offer, give her 48 hours to make a decision.
- d. Telephone Siobhan to inform her that she has been successful and, if Siobhan asks for time to think about the offer, say no, explaining that there are other good candidates who she would not want to lose if Siobhan refused the offer.
The answers can be found at the bottom of the line manager briefing.
|About XpertHR line manager briefings|
XpertHR line manager briefings are general summaries of current employment law and good practice specially written for line managers.
They are designed to be used by XpertHR subscribers who need to ensure that the line managers in their organisation deal with job applicants and manage workers in accordance with the law and good practice. They can be adapted for use in individual organisations and can be used either as a training resource or as an information resource, subject to the XpertHR terms and conditions of use.
Test yourself answers: 1. (b) 2. (a) 3. (d) 4. (c)