Where there has been an unconditional offer of employment and the employee has accepted the offer, there is a binding contract of employment, even if the employee has not yet started their first day of work.
If the employer were to withdraw the offer once it had been made and accepted, this would be a breach of contract. The employer would then be liable for the consequences of that breach, for example notice pay (subject to any duty to mitigate loss on the part of the individual).
The employer should ensure that there is no discrimination behind the reason for subsequently wishing to withdraw an unconditional offer of employment. If the reason is a freeze on recruitment the employer risks a breach of contract claim, but if, for example, the withdrawal takes place after the employer has found out that the employee is pregnant or disabled, there is a high risk of a discrimination claim. If the reason is pregnancy, the employer may also face a claim for automatically unfair dismissal as no qualifying period of service will be required.
Where there has been a conditional offer of employment, for example one subject to satisfactory references, and that condition has not been satisfied, the contract has not been formed and the employer is able to withdraw. Care should still be exercised if the job offer is subject to health clearance since, if the employee is disabled, the duty to make reasonable adjustments will apply.
