Withdrawing a job offer can be a complex decision and is generally guided by whether an individual has satisfied relevant pre-employment checks. In schools and Trusts, these checks will need to satisfy several different criteria, including:
- Safer recruitment checks to comply with Keeping Children Safe in Education (KCSIE)
- Right to work checks
- Reference checks to ensure the individual is suitable for the role
Due to the need for these checks to have been satisfied prior to an individual taking up a position in your school or Trust, any offer of employment that you make should be conditional on them.
It is critical that the checks are undertaken in a timely manner, in order to enable you to identify, as soon as possible, whether a conditional offer of employment can be confirmed.
Some checks can be straightforward, for example, seeking proof of qualifications, of Disclosure and Barring Service (DBS) clearance and right to work. If you are unable to verify these, then the offer of employment can be withdrawn. Other checks can be more subjective, such as references.
Should there be concerns on receipt of references, this should be clarified with the referee and taken up with the candidate at interview (KCSIE). Where references are taken up in advance, any concerns are dealt with prior to the offer of employment having been made. However, there are times when it is not possible to take up references in advance of a conditional offer being made, and where these are then found to be unsatisfactory, problems can arise. The job offer and/or contract of employment should state that the employer may terminate the employment if it receives references that are unsatisfactory to it. It is for the employer to decide if a reference is "satisfactory". In Wishart v National Association of Citizens' Advice Bureaux [1990] IRLR 393, the Court of Appeal held that only the employer could judge whether a reference was satisfactory, and the court appeared to be unwilling to interfere with an employer's decision on this point.
Employees have extensive rights of access to personal information held by their employer. Under the Data Protection Act 2018, Schedule 11 confidential references given or received for the purposes of employment or potential employment of a data subject are exempt from the disclosure provisions provided under the right of access. The employer is not required to provide a copy of any confidential references given or received in relation to potential employment in response to this request.
Should you not be satisfied that an individual is suitable for employment following a conditional offer on the basis of a reference received, it is possible to withdraw this offer.
However, if all checks have been satisfied and an unconditional offer of employment has been made, withdrawing the offer of a job becomes more complicated – and carries a greater level of risk – both legal and reputational.
Breach of Contract:
If an unconditional offer is withdrawn without proper notice or compensation, the candidate may claim breach of contract, leading to potential legal action and financial liabilities.
Discrimination Claims:
Employers must ensure that the withdrawal of a job offer does not appear discriminatory based on protected characteristics such as age, gender, race, or disability. Failure to do so can result in claims of unfair treatment.
Reputational Damage:
Withdrawing job offers can damage the employer's reputation, making it harder to attract top talent in the future. It may also affect the morale of current employees.
With the prospect of changes to legislation making the ability to claim for unfair dismissal a day one right, it is becoming increasingly important to have robust recruitment processes and pre-employment checking procedures in place. Withdrawing a job offer should be approached with caution, ensuring all legal and procedural guidelines are followed. If you believe that you made need to withdraw the offer of a job, you can speak to your dedicated EPM adviser who can support you in determining how to proceed based on your unique circumstances, so please get in touch with us.
