The law on withdrawing a job offer differs according to whether you have made an unconditional job offer or a conditional job offer.

Unconditional job offers

Once the applicant has accepted an unconditional job offer, there is a legally binding contract of employment between the employer and the applicant.

If you do not hire the applicant, they can take legal action against you for ‘breach of contract’.

If they take action against you for breach of contract, they may be entitled to damages or compensation in line with their notice period – the time for which they would have been employed before you would have been permitted to dismiss them. In cases of employees in senior or managerial positions, this can be very costly indeed as it could be equivalent to three or six months!

However, if you withdraw for a discriminatory reason, for example on the basis of their disability, there would be other losses the applicant could claim too.

Conditional job offers

However, the situation is different if you have made a conditional job offer to the applicant.

A conditional job offer can be withdrawn if the applicant does not fulfil all the conditions of the offer. The conditions could include satisfactory references, a criminal record check, a qualifications check or a health check. However, if the applicant does meet all the conditions and you decide to withdraw the offer, the applicant can take legal action against you for breach of contract.

Be warned of withdrawing the offer for a discriminatory reason.

If you have made a conditional offer and found their health condition constitutes a disability, you must be very careful when deciding to withdraw a job offer. Withdrawing a job offer simply because the medical check shows the applicant has a disability is likely to constitute direct discrimination.

If these pre-employment checks do reveal that they are disabled, you have an obligation to consider what reasonable adjustments are necessary. You should try and find out more about their condition, how it affects the individual and their ability to do their job. An employer’s failure to abide by a duty to make reasonable adjustments is also a type of discrimination. An employment law specialist will be able to help you out with this.

Case study

The recent case of West v Yorkshire Ambulance Services NHS Trust shows the dangers for employers.

In this case, a disabled nurse received a conditional offer of employer subject to satisfactory completion of pre-employment checks. Her prospective employer decided to revoke the job offer after seeing her previous absence record, an Occupational Health report and references. It was revealed she had been on long-term sick leave for 18 months before her last role’s employment was terminated.

The nurse claimed that she had suffered discrimination arising from her disability under the Equality Act and the Employment Tribunal upheld the claim. They were taken aback by the speed at which the employer withdrew the offer after receiving the results of the pre-employment checks and concluded that the key reason for the withdrawal was that the absences had made the employer doubt her ability to do the job.