Hello all,
We have issued an offer letter to a new employee, with a start date subject to the satisfactory clearance of relevant checks. All checks have now been received and we hit coronavirus just after some thoughts please
1. Can we justifiably delay the start date considering the situation?
2. If we do start the new employee can we furlough them immediately? Thanks
Can we withdraw a job offer, or delay a new worker's starting date?
Your options will depend on the stage you have reached in the recruitment process:
Before offer has been accepted. You can withdraw an offer before an individual has accepted it, but you should keep clear records to prove that it was withdrawn before being accepted. Ensure you clearly communicate the withdrawal to the candidate, as it will only be effective from the date it is communicated to them. If a candidate accepts a position via post, their acceptance can be effective from the date it is posted.
Conditional offer accepted, but condition not met. If your job offer was conditional, and one of the conditions is not met, you can withdraw the offer even if the individual has accepted it. You can do this without giving notice or pay in lieu of notice.
Offer accepted, all conditions met. Once an individual has accepted an offer, and all conditions have been met (or you didn't include any conditions in the offer) there will be a contract of employment, and you cannot simply withdraw the offer. If you want to terminate the contract, you will need to give notice or pay in lieu of notice. This is the case even if the employee has not yet started work under the contract. The amount of notice will be as per the terms of the contract (and at least statutory notice). The candidate will be due payment in respect of the time from when they were due to start work. So, if they are entitled to four weeks’ notice under their contract, and you issue notice one week before their anticipated start date, you will need to pay them in respect of the three weeks from that start date. Obviously, you could ask them to come to work for that three-week period – if they refuse you would not then need to pay them for that period.
Gross misconduct. Clearly, if an employee is guilty of gross misconduct (for example, you discover they have lied about their qualifications) you can terminate without notice.
If you withdraw an offer, document your reasons for this:
This will support your position in the event an individual alleges, for example, that it was for a discriminatory reason.
Although employees generally need two years' service to claim unfair dismissal, for most automatically unfair dismissals (such as those connected with pregnancy) they can claim from day one of employment.
You cannot amend the start date without the employee's agreement; however, if the alternative is that you are likely to terminate the contract, individuals may well be prepared to agree to amend the start date.
Can we withdraw a job offer, or delay a new worker's starting date?
Your options will depend on the stage you have reached in the recruitment process:
Before offer has been accepted. You can withdraw an offer before an individual has accepted it, but you should keep clear records to prove that it was withdrawn before being accepted. Ensure you clearly communicate the withdrawal to the candidate, as it will only be effective from the date it is communicated to them. If a candidate accepts a position via post, their acceptance can be effective from the date it is posted.
Conditional offer accepted, but condition not met. If your job offer was conditional, and one of the conditions is not met, you can withdraw the offer even if the individual has accepted it. You can do this without giving notice or pay in lieu of notice.
Offer accepted, all conditions met. Once an individual has accepted an offer, and all conditions have been met (or you didn't include any conditions in the offer) there will be a contract of employment, and you cannot simply withdraw the offer. If you want to terminate the contract, you will need to give notice or pay in lieu of notice. This is the case even if the employee has not yet started work under the contract. The amount of notice will be as per the terms of the contract (and at least statutory notice). The candidate will be due payment in respect of the time from when they were due to start work. So, if they are entitled to four weeks’ notice under their contract, and you issue notice one week before their anticipated start date, you will need to pay them in respect of the three weeks from that start date. Obviously, you could ask them to come to work for that three-week period – if they refuse you would not then need to pay them for that period.
Gross misconduct. Clearly, if an employee is guilty of gross misconduct (for example, you discover they have lied about their qualifications) you can terminate without notice.
If you withdraw an offer, document your reasons for this:
This will support your position in the event an individual alleges, for example, that it was for a discriminatory reason.
Although employees generally need two years' service to claim unfair dismissal, for most automatically unfair dismissals (such as those connected with pregnancy) they can claim from day one of employment.
You cannot amend the start date without the employee's agreement; however, if the alternative is that you are likely to terminate the contract, individuals may well be prepared to agree to amend the start date.
