Withdrawing an offer of employment – Part 2

In part 1 of this three part series, we looked at withdrawing an offer of employment (1) before it has been accepted and (2) after a candidate has accepted the offer.

In this part 2, we look at (1) high-risks for withdrawing the offer of employment and (2) pre-conditions to an offer of employment.

What reasons are “high-risk” for withdrawing the offer of employment?

The prospective employer should always consider the reasons why the offer is being withdrawn to ensure that the reasons are not tainted by discrimination.

If the reason for withdrawing the offer is based on one of the nine discriminatory grounds (gender, civil status, family status, sexual orientation, religion, age, disability, race and membership of the Traveller community), the candidate may take a claim against a prospective employer under the Employment Equality Acts (“the EEA”), even if they have not yet started working with the employer.

The EEA prohibits discrimination against a prospective employee in relation to access to employment. If a candidate can establish that he or she was unsuccessful in the recruitment process or that an offer was withdrawn because of one of the nine grounds, that candidate can be awarded up to €13,000 compensation in an employment equality claim.

Risks are increased if an offer is withdrawn after the candidate has undergone a medical assessment for the job, for example. It is highly likely that any decision to withdraw an offer of employment on medical grounds will give rise to a claim for disability discrimination.

Similarly, if a candidate informs you that she is pregnant after an offer of employment has been made, the withdrawal of that offer is likely to leave an employer vulnerable to a successful discrimination claim on the grounds of gender. An example of such a case is Martina Ryan v Moog Limited Dec – E2011 – 027. In this case the complainant alleged that the company withdraw an offer of a ten month contract because she revealed she was pregnant. The Tribunal found that there has been discrimination and awarded her compensation of €12,697.

Accordingly, prior to withdrawing an offer of employment, an employer should always:-

• ensure that there are no discriminatory reasons for the withdrawal; and
• document the reasons for the withdrawal so that it has evidence to counter any allegation of discrimination, should one be made.

Should offers of employment be made subject to pre-conditions?
Yes, in order to reduce the risk of a breach of contract claim being made against the employer, the, oral offer, the offer letter and the contract of employment should include any conditions to which the offer is subject. These conditions may commonly include:-

• receipt of satisfactory references;
• confirmation that the candidate holds the qualifications that they claim to have;
• confirmation that the candidate is free from any restrictions from previous employment which would prevent them from starting work with the prospective employer;
• confirmation that the candidate has the appropriate visa to work in Ireland;
• passing professional examinations;

A pre-condition such as passing a medical examination should be considered carefully before inclusion in an offer letter. If the employment does not proceed due to the results of a medical exam, the employer will be left exposed to a claim for disability discrimination.

In Part 3, we will look at a recent case that highlights the importance of making an offer subject to pre-conditions and provide a sample clause.

For further information on this topic, please contact Laura Graham on lgraham@reddycharlton.ie