Can I delay a start date or withdraw a job offer in light of coronavirus?

Employers who made an offer of employment prior to the coronavirus pandemic may be considering whether a start date can be postponed or the offer can be withdrawn.  There could be several reasons; you may be required to save costs if there is a temporary reduction in demand and so no current need for the employee, or you may be considering the more practical difficulties regarding training the new starter when the rest of the team works from home.  Our Employment Law team here reviews these concerns and explains whether start dates can be delayed or offers withdrawn, what alternatives there may be and the implications of those decisions. 

Can I delay a new employee’s start date?

If the employee has accepted a job offer and agreed a start date, either verbally or in writing, this will be a contractual term. You could change the start date but only with the employee's agreement, and if you change the start date without the employee’s agreement this would be in breach of contract. A new starter may accept a delay in starting their employment if you explain the circumstances, particularly if the alternative to the delayed start is that the job offer will be withdrawn. Where a new start date is agreed this should be recorded in writing.

When can an offer of employment be withdrawn?

As an employer, you can withdraw your job offer if the new starter has not accepted the offer.

Where you withdraw a job offer for reasons related to the coronavirus outbreak this is likely to be in breach of contract. This is because you can only withdraw an offer if it was conditional on the employee meeting certain requirements (such as receipt of a satisfactory reference or DBS result) and the reason for withdrawal is that the conditions have not been met.

The new starter could bring a claim for breach of contract if you withdraw a job offer due to the coronavirus crisis and the job offer is:

1. conditional and the new starter has met all the conditions; or
2. unconditional

If successful, it is likely that any compensation awarded would be limited to payment for the contractual notice period. However, this could be costly where employees in senior or managerial roles have long notice periods. Bear in mind however that the individual would not be able to claim against you for withdrawing an offer in the Employment Tribunal, they would have to bring a breach of contract claim in the civil courts.

What are the alternatives to withdrawing a job offer?

To avoid the employee bringing a claim you should not withdraw the job offer, and instead terminate the employee’s contract immediately and pay them for the notice period which is outlined in the contract. For example, if there is a one-week notice period which takes effect immediately, you can terminate the contract and pay one weeks’ payment in lieu of notice to the new starter. You should record the reasons for the decision to avoid any allegation of discrimination or future claim.

To make a payment in lieu of notice you will need to check the terms of the employment contract. If there is no contractual provision to make such a payment, terminating employment with a payment in lieu of notice is likely to be a breach of contract. Usually you would compensate for this breach by including all the remuneration and benefits the employee would have been entitled to during the notice period. You may also include a payment for any holiday that may have accrued during the period too, even though you may not technically be required to avoid a later claim. If there is no contract in place, then you would need to ensure you follow at least the statutory provisions in relation to notice periods.

If you are an employer with questions regarding recruitment during the coronavirus pandemic, you can contact the Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

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ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.