Withdrawing an offer of employment – Part 3

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

In this part 3, we look at a recent case that highlights the importance of making an offer subject to pre-conditions.

Genockey v The Governor and Company of the Bank of Ireland [2017] IEHC 498

In the recent High Court decision of Genockey v The Governor and Company of the Bank of Ireland [2017] IEHC 498, a successful applicant’s offer of employment was withdrawn because the she had failed Maths in the leaving certificate.

In this case, the plaintiff had sent her unsolicited CV to the defendant employer. Her CV included information that the plaintiff’s leaving certificate results consisted of 3 (honours) 4 (passes). In reality the plaintiff had received 4 passes and 3 fails in pass level subjects. However, the plaintiff submitted that the error in her CV was because she had forgotten her results, which the Court accepted.

The plaintiff was invited to interview and was asked to bring with her a completed application form and original proof of her qualifications. The plaintiff attended interview and brought with her a completed application form. She did not bring proof of her qualifications.
The defendant employer’s application form which was completed by the plaintiff, prior to interview, included the following:-

1. a statement that applicants will undergo a pre-employment screening process;
2. prior to commencing employment, the successful candidate must provide original documentation in relation to the required educational qualifications;
3. a declaration to be signed by the applicant which states:-
   “an offer of employment is subject to verification of educational qualifications, proof of identification […] Any deliberate misrepresentation or omission could result in the withdrawal of any offer of employment (if successful), or in dismissal should employment have commenced.”

Following interview, the plaintiff received a call from the defendant employer to confirm that she was successful at interview. A point of dispute arose as to the precise wording used by the defendant employer on the call. The plaintiff contended that the offer was an unconditional offer, while the defendant contended that the offer was most likely make subject to successful completion of pre-hire screening checks. The plaintiff said that she would give her notice to her current employer and agreed to commence in two weeks.

Subsequent further calls were made to the plaintiff by the defendant requesting a reference from her current employer as well as proof of educational qualifications, including her leaving certificate results. She also received a job offer in the post from the defendant employer which stated:-
“I am pleased to formally offer you a position of Administrator as a fixed-term employee with the Governor and Company of the Bank of Ireland […] This offer is subject to receipt of two satisfactory references, one from a previous employer and one from your current employer, Medical Assessment, verification of your qualifications and the information you have provided on the Application Form”.

Having provided the references required and her leaving certificate results, the plaintiff received a call from the defendant stating the defendant employer could no longer offer her the position of Administrator, as she had failed Maths in the leaving certificate.

The central allegation of the plaintiff was that the defendant represented to her that she had an unconditional offer of employment and that she was advised to hand in her notice with a view to starting her employment with the defendant.

The defendant relied on the express limitations to the offers of employment contending that they made it clear that the offer was subject to pre-conditions.

The High Court referred to a number of cases including Forshall & Fine Arts & Collections Ltd v Walsh (unreported, High Court, Shanley J.,18 June, 1997) and King v Aer Lingus Plc. [2002] 3 I.R. 481.
In Forshall & Fine Arts & Collections Ltd, Shanley J states that:
“A party seeking damages for negligence misrepresentation must establish that the representor failed to exercise due care in making the representation as a result of which representation the person to whom it was made was induced to enter into the particular agreement and suffered damage in consequence of the inaccurate representation.”
In King v Aer Lingus Plc [2008] 4 I.R. 481, it was held that there is a duty of care to avoid making negligent representations of statements in pre-contractual, negotiation states, which will have the effect of inducing a person to act to their detriment by leaving a previous position.

In the current case, the High Court held that the plaintiff had not established that the defendant failed to exercise a duty of care in making a representation to the plaintiff to enter into the agreement, acting to her detriment. The Court held that “at all stages of the hiring process, it was made clear that the job offer was conditional upon the plaintiff meeting certain requirements; in the declaration she signed at application stage; at interview state; when she was offered the job on the phone; when she was sent a written offer in the post.”

Accordingly, the Plaintiff’s claim failed.

This case illustrates the importance of including pre-conditions at all stages at the recruitment process.

Example clause setting out pre-conditions to employment

Pre-Conditions to Appointment
Appointment is conditional on the satisfaction or waiver by the Company of the following conditions:-

• The provision of [two] references to the Company which the Company deems to be satisfactory, one of which should be from your current employer;
• The provision of documentary evidence of your qualifications;
• Confirmation that you are free form any obligations owed to a third party which may prevent you from starting work or properly performing the duties of your new position. 

The Comany may at its sole discretion waive any of the conditions to appointment in whole or in part at any time.
For the avoidance of doubt, in the event that the above pre-conditions are not satisfied or waived by the Company, the offer of employment shall be deemed withdrawn.

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