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Recruitment

How should employers make offers of employment?

Applicants will form an understanding of the job and its main requirements from the advertisement, job description, interview and any other documentation provided. Employees may later be entitled to rely on this information, or any other representations made about the position.

A verbal statement or offer can therefore become binding in the same way as one made in writing. Similarly an offer can be accepted verbally or in writing.

Employers should make offers of employment in writing. The terms of that offer and any contract of employment if accepted will then normally supercede any verbal statements or any other ‘pre-contract’ representations on those particular terms and conditions. An offer of employment may however be withdrawn at any time before it is accepted by the employee.

What is the effect of accepting an offer of employment?

Once an unconditional offer is accepted a binding contract is made. The offer and acceptance cannot be withdrawn without the consent of the other party otherwise that contract is breached.

In the absence of that consent, an employer must terminate under the terms of the contract, usually by giving the employee pay in lieu of any contractual notice entitlement.

If the employee wishes to withdraw acceptance, then the employee cannot be compelled to perform a contract of employment. Although potentially liable in damages for breach of contract, in practice an employer’s loss is likely to be minimal and difficult to quantify.

Conditional offer and acceptance

Offers of employment and their acceptance may be made conditional. The offer and acceptance do not become binding until the condition is satisfied.

An offer “subject to satisfactory references” is conditional on the receipt of references that would satisfy a reasonable employer. Once that offer is accepted it then becomes binding when satisfactory references are provided, although “satisfactory’ may be a vague concept.

Other conditions often relate to:

  • Receipt of a satisfactory medical report
  • Production of evidence that the employee has the right to work in the UK
  • Satisfactory evidence that the employee has the necessary qualifications for the job
  • Acceptance of the form of contract proposed by the employer

Vague or uncertain offers

In order to create a binding agreement the main terms of a contract must be sufficiently identifiable and agreed in order to make the contract workable. These include pay, the work to by done and when the work is to begin.

If no notice period is specified, then the statutory minimum notice will apply (1 week after 28 days, 2 weeks after 2 years’ employment and a week for each year thereafter up to a maximum of 12 weeks after 12 years’ employment). In any event reasonable notice must be given, ie what is reasonable having regard to the nature of the position and any other relevant circumstances which may be greater (but not less than) the statutory minimum.

If the important terms cannot be identified from the offer and any representations made by the employer then the offer and any acceptance do not take effect.

Offers of employment should where possible identify at least the following:

  • The identity of the employer
  • The job title or a description of the job
  • Whether the job is full time, part time, fixed term or temporary and when it is to begin
  • Details of any essential experience and qualifications needed to perform the job
  • The location and details of any required travel
  • Details of all pay and benefits provided
  • Notice required on each side

It is good practice for an offer to be accompanied by a contract of employment and the offer made conditional on its acceptance.

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