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Irish Employers Beware: Think Twice Before Withdrawing a Job Offer!

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There’s a new opening in your organisation.  It enthuses Joan – one of your valued employees – and it looks like she’s going to take the position.  But Joan is already in a valued role.  To backfill Joan’s current position you launch a recruitment effort and make an offer to an excellent candidate – Joe.  But then Joan decides to stay where she is.  And you’re left with the prospect of taking Joe on board to fill a role that doesn’t need filling.

What to do with the offer you’ve made to Joe?

Or you make an offer to Peter to fill an important gap in your company.  But then your largest customer, a customer responsible for 40% of your revenue, decides to move with immediate effect to another supplier.  You beat yourself up over your excessive dependency on that customer but you also have a more immediate problem.  You have a job that needs doing but you simply can’t now take on another piece of fixed overhead.

What to do with the offer to Peter?

You head a division, with full responsibility for staffing, and you’ve made an offer to John to fill a position.  But then your Board, for strategic reasons, orders the closure of your division.  You’ll be moving to another division.

But what to do about that offer you made to John?

There are many reasons why you might want to withdraw an offer.  However, no matter how legitimate your reasons, there is another person affected.

At best, from your perspective, they will feel disappointed and let down but decide to move on with their lives.

But they may not take things so lightly.  Imagine if they have already handed in their notice at their current employer?  Imagine if they have initiated the sale of a home to move closer to your location?  So they may be resentful – and perhaps angry.

If they feel that there is an ulterior motive to your decision they may feel discriminated against.  Or they may feel that a contract – implied or actual – has been breached.

In short, the person affected by the withdrawal of an offer may take legal action against you.  How they react is entirely out of your control.

An example of this occurred in 2011 when a woman claimed that an offer of employment was withdrawn after the employer learnt that she was pregnant.  The claim of discrimination was investigated by the Equality Tribunal in 2013.  The employer argued that their concern was simply that a successful applicant be available to cover a full maternity leave.  They had no issue with the woman being pregnant.  Correspondingly, they had done nothing discriminatory.  The claimant’s case was that the verbal offer was withdrawn when she said that she was pregnant and that she was then re-offered the role but under different terms that were less flexible than those in the verbal offer.  The Equality Officer ruled in the woman’s favour – due to the terms changing between the verbal and written offers and due also to inconsistencies in the employer’s testimony.  (In oral testimony the employer’s MD contradicted their own written submission on the crucial point of whether or not the offer had been withdrawn.)

This particular employer did themselves no favours.  Interview notes were not signed by interviewers.  The terms offered differed from the verbal offer to the written offer.  Their written submission to the Tribunal was made without getting legal advice.  And the written submission was made by someone (the MD) other than the person who had actually made the offers to the claimant.  So, leaving aside the question of whether or not they were actually discriminating, they left themselves unnecessarily exposed – and it was that exposure that helped tilt the Equality Officer to rule in the claimant’s favour.  In his own words: “On the balance of the evidence presented in writing and directly at the hearing, I accept the complainant’s evidence that after she informed the respondent she was pregnant the initial job offer was verbally withdrawn. I also accept that the offer was reinstated but only after the complainant asked for the reasons for the withdrawal to be put in writing.”

You need to focus on what is within your control.  And there are measures you can take.

If you are making a verbal offer – and it can be a good idea to do so in case the applicant has other suitors, make sure you tell them that the offer is provisional and the formal offer will be made (later) in writing.

You can ensure that the language you use in any written conditional offer is framed carefully so as to avoid being construed as a contract or as a guarantee of employment.  This requires you to explicitly state in any such conditional offer that all relevant criteria be met – satisfactory reference checks, satisfactory health check, security clearance, good credit record, clean criminal record, a certain type of driving licence, truthfulness at an interview, the candidate being legally entitled to work in Ireland, etc.

The onus is on you to decide what checks are appropriate in the recruitment and selection process for your organisation and to then diligently carry out those checks.  Of course, you need to make candidates aware of what those checks will be.  It may be surprising but one area often neglected by recruiting organisations is to check whether potential employees are actually suitably qualified and skilled for the role.  For example, do they have the qualifications that they claim to have?  Further, it is essential that you seek permission from the candidate before delving into their past.

A contract of employment does not exist between an employer and a candidate even if a provisional written offer has been made until all the conditions under which the offer was made have been satisfied.  So, for example, such a conditional job offer can be withdrawn if an employer discovers during the process that a candidate has lied at interview or if references provided prove to be unsatisfactory.  Note that checking references can be problematic as many larger organisations have a policy of not giving character references and will only confirm dates of employment and role details.

If you have these bases covered you may think that you’re okay in withdrawing an offer.  But offer withdrawals are only legal until they’re challenged – and you need to understand that they can be challenged.  What if the candidate claims that they’ve incurred a financial cost during the application process?  What if they’ve had a minor criminal conviction for something that has absolutely nothing to do with their ability to do a job for you?  Or what if they have had a minor incident in their credit history but will have zero dealings with money if they take up the role with you?  Or what if a medical check does show that they have a disability but that disability has no impact on their ability to carry out their responsibilities?

Of course, your withdrawal of an offer may be legitimate.  But you still need to be ready to deal with all possible after-effects.

If you do wish to withdraw an offer, how and when you do it may reduce your exposure to legal problems:

  • Only do it if you believe you have legitimate grounds on which to do it.  If they’ve stated that they got a first-class honours degree and you determine that they did not then you’re perfectly entitled to withdraw an offer.
  • If you are doing it – do it as soon as you make the decision to do it.  This will help the applicant halt whatever changes they’ve been making in their in preparation for starting in their new role with you.
  • Be as honest and as open as you can.   You’re already doing something that will have a serious impact on them.  You need to avoid compounding it with anything that could be used against you later.
  • Another defensive measure to consider would be to consider reimbursing them for any costs they’ve incurred in going through the application process with you.

Obviously, prevention is better than cure.  You’re exposing yourself to risk if you have to say “No” to an applicant to whom you’ve previously said “Yes”.  So, before making any offer, and definitely before making an unconditional offer, be mindful of the following:

  • Have you gone through the recruitment process in a methodical step-by-step manner?
  • Have you ensured that there is a real and current opening for the person to fill?
  • Have you done whatever background checking is possible?
  • Are you as confident as you can be that they are the best candidate?

Recruitment is a complex and critical area of HR.  Are your people adequately trained in recruitment?  Judging people?  Specifying roles?  Interviewing?  Vetting?  The better prepared and trained you and your team are – the lower the risk of you even needing to withdraw a job offerBut, if you do need to withdraw an offer as a last resort, or indeed if you need expert and professional guidance on any aspect of recruitment, call Mary Cullen, Patrick Foley or Liam Barton on 056 770 1060 or email mcullen@insighthr.ie.

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