If you make a job offer to someone, then, once it has been accepted (and once any conditions that the offer was subject to have been satisfied), there is a contract between you and the future employee, even if the offer has only been made verbally. Sometimes, particularly with more senior positions, the job offer will be made some months before the person is due to start work with you, as they will usually have to work a period of notice with their existing employer which is likely to be anything from 1 to 6 months. In that time, things within your business can change, and what had seemed like a good recruitment may no longer seem such a good idea.
So, what happens if you change your mind? Well, from the employer’s point of view, the answer is simple – you simply tell the prospective employee that you no longer need them. As there will normally already be a contract in place, you will need to pay them in lieu of the notice that they would have been entitled to on the first day of their employment. This is often quite short, as it is likely that the employee would have been on a probationary period. The normal notice during a probationary period is either 1 week or 1 month. Under the current legislation it could potentially be nil for the first month if that is what the parties have agreed, but this would be unusual and is unlikely to be something prospective employees would want to agree to.
This is one of the reasons why it is a good idea for an employer to provide a copy of the contract of employment to the prospective employee at the time when you make a job offer (or soon after), as it makes the terms clear to both parties. If you have not told an employee about a probationary period, you may find you are liable for more than you expected in terms of notice pay.
From the prospective employee’s point of view the decision may be much more dramatic – and indeed traumatic! They are likely to have resigned from their existing job and be working their notice, they may have sold their house and be in the process of relocating to work for you, and in some cases they may have taken their children out of school and enrolled them in a new school nearer to where they expected to work and live. Their existing employer is not under any obligation to allow them to retract their notice, and indeed may well not be inclined to allow an employee to remain who had wanted to leave their employment. The prospective employee may have spent thousands of pounds on house surveys and other fees in anticipation of relocating, and may also find themselves unemployed.
Fortunately, these types of situations do not occur too frequently, but in reality few employees will probably be aware of the potential risks they take when changing their jobs.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).