by Siobhan Lafferty, Lawyer in the Employment Department, McDowell Purcell
In the United States, the Supreme Court nominee Brett Kavanaugh has found himself in the middle of his confirmation process, with allegations of sexual harassment which are stated to have taken place when he was a teenager. The allegations against him are now hampering his smooth confirmation as the new Supreme Court Justice, which would be a lifetime appointment. Whilst it remains to be seen as to whether this will actually impact his eventual appointment or not, the issue raises a broader question for employers – what do you do when that ideal candidate isn’t so ideal after all? Can you change your mind before the employee is in the door?
Make offers conditional
There are ways to mitigate against the risk of finding out something unsavoury about your candidate during the recruitment process. It is wise, when making a verbal offer to a candidate, to state that their offer is subject to certain conditions. These conditions could be the receipt of satisfactory references; evidence of qualifications; any right to work documentation etc.
Employers should keep abreast of the information which they receive from candidates – or do not as the case may be – in order to ensure all of the conditions of the offer are met. Where an employee fails to provide such documentation or detail, then the employer will not be required to employ the candidate.
Timing of a Withdrawal
The timing of withdrawing an offer will be important in dealing with a candidate. Where the employer has offered the candidate a role but that has not yet been accepted by the person, the risk would generally be low as the normal rules of contract law would apply. Essentially it would be difficult for the employee to make a claim when no contract had been concluded.
However, in situations where you have offered and the individual has accepted, then even before they have commenced employment you should dismiss the employee in line with the offered contract. That would mean giving the employee their notice period in order to avoid a breach of contract claim. If the contract outlines a shorter notice period during the initial probationary period, this may not amount to very much for a potential candidate to pursue, but employers will need to be mindful if withdrawing a contract that the notice period could be some months, and the employee could suggest they have incurred other losses as a result of the withdrawal of the offer.
Be wary of discriminatory reasons
In either of the situations above, employers still need to be alive to the fact that the withdrawal of the offer cannot be based upon any of the nine discriminatory grounds outlined in the Employment Equality Acts 1998-2015. Employers should be clear on this before withdrawing any offer and they should have evidence of the reasons behind the withdrawal to ensure they could deal with any claim which a potential candidate might bring on the basis of discrimination. Employers should also be cautious in situations where they choose not to offer a role after a medical examination, as this could lead to a disability discrimination claim.
There are still opportunities for employers to withdraw their job offers before they bring them in to the workforce, but they are not without their risks. Any allegations of discrimination would be something employers would want to avoid and so should be clear on their reasoning should they wish to withdraw their offer. It would certainly seem that when it comes to appointment to the US Supreme Court, Brett Kavanaugh’s nomination will not be withdrawn…for now at least.
About the author
Siobhán is a lawyer in the Employment Department at McDowell Purcell, and regularly advises both corporate client employers as well as employees. Siobhán has extensive experience in advising on all aspects of employment law and has advised on a range of issues from redundancies to discrimination complaints. She also has experience in working on contentious matters across the UK and Ireland, including High Court proceedings.
