Making a contractual job offer to a new employee

Following a successful recruitment and selection process, employers will be able to identify which candidates they wish to employ.

Making a job offer to the successful candidate appears to be a straightforward area of law, however, there are several factors that employers should consider to put themselves on the best path.

Making a job offer

Once your interview process has identified the right candidate, the next step is to offer them the job. Job offers can be made in two ways; verbally and in writing.

Verbal job offers are as binding as written offers so where a verbal offer is made, and verbally accepted, a valid legally enforceable contract of employment is formed even though there is nothing in writing.

Any verbal offer should be closely followed by written confirmation which outlines the terms and conditions that will apply; ensuring any terms verbally agreed are included in this.

It is recommended that job offers are made in writing to ensure there is clarity for both the employer and the candidate.

Following selection, the employer can send a letter stating the job offer and any other information, for example;

Making a conditional job offer

Most employers generally make conditional job offers i.e. the offer is subject to certain conditions being met by the applicant. Common conditions of the offer include:

  • Receipt of satisfactory references from previous employers or personal references, generally two references are required;
  • Proof of the candidate’s right to work in the UK;
  • Receipt of a satisfactory Disclosure and Barring Service check;
  • Conditions required by the particular job role, for example, a licence to undertake work as licensed security personnel.

The conditions the applicant needs to meet should be clearly communicated to the employee in writing and they should also be informed that the offer will be withdrawn if the conditions are not satisfied.

Acceptance of a job offer

Where an unconditional job offer is made this becomes binding on employers when accepted by the candidate. Acceptance creates a legally binding contract of employment.

Acceptance may be verbal, for example, spoken acceptance in a telephone call, or in writing via letter or email. It is advisable that the offer letter states acceptance must be in writing to ensure there is evidence as to when the contract is created.

Conditional job offers become binding on the employer when the conditions are satisfied.

Withdrawing a job offer

Where a conditional job offer is made, there is no obligation on the part of the employer to employ the individual unless the conditions are met.

A failure to meet these conditions through, for example, failing to receive satisfactory references, allows the employer to lawfully withdraw the offer.

Before acceptance of an unconditional job offer, the offer can be withdrawn so long as the employer acts quickly and confirms, in writing, to the individual that circumstances have changed and they are no longer in a position to offer the role to them.

This needs to occur before the candidate accepts the offer so sending the letter by fast delivery and ensuring evidence of delivery is received will be vital.

Simply withdrawing an accepted unconditional offer, even before the employee has started actually working for the company, will breach their contract.

This does not mean this cannot be done, however, it is likely some compensation will need to be offered to the candidate to remedy the breach. This generally requires payment of the notice pay they would have received had they already started working for the business and their contract was terminated.

In most cases, this will be one week of notice, however, some senior employees may have significantly greater notice periods.

Discrimination risks

It is important to note that job candidates are legally protected against discrimination under the Equality Act 2010 even if they aren’t working for the business. This means employers should not make, or withdraw, job offers on discriminatory grounds such as gender, pregnancy, age, sexual orientation or gender reassignment.

Employers should be considering objective, job-specific requirements when making these decisions.

Probationary periods

Most new roles are offered on terms which include the requirement to successfully complete a probationary period.

The purpose of probationary periods is to allow a reasonable period of time during which the employer reviews the performance of the employee to ensure they can meet the needs of the role.

The length of probation will depend on the nature of the role, for example, the more complex the duties required by the role the longer it will reasonably take to review the employee’s performance. The length of probation should be set out in the contract of employment.

Performance should be reviewed during the probationary period to ensure the employee is offered the support and training they need to get to the required standard. The employee should be met with periodically to discuss their performance and this meeting should be minuted as supporting evidence for any decisions.

At the end of the probation period, if new employees are unable to meet the required standard following reasonable training and support, the employer can extend the probationary period or terminate their employment, giving the required notice.

On the other hand, if the employee shows they can perform as required, the successful completion of their probationary period should be confirmed to them in writing.

This guide has been written exclusively for ByteStart by Peter Done, Managing Director of Peninsula Business Services – the UK’s leading specialist Employment Law, HR and Health & Safety service.

Last updated: 22nd February, 2021

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