Can an employer withdraw offers of employment or delay start dates for new recruits in light of Covid-19?Posted in : First Tuesday Q&A NI on 2 June 2020 Issues covered: Contracts of Employment; Covid-19; Withdrawal of Offer of Employment
Withdrawing offers of employment
As a starting point, an employer would need to consider if a contract of employment has been signed by the new recruits (although, technically, a contract can be formed without it being written down). This is because once the offer of employment has been made and accepted by the employee, the contract of employment is formed. A written contract is more easily enforceable.
Therefore, if the new recruits have agreed an offer of employment and/or an employment contract, the employer will need to serve them with notice in order to terminate the contract before they commence employment. In practice, this will often involve making the new recruits a payment in lieu of notice. Failure to do so could give rise to claims for breach of contract.
If the new recruits have not signed any offers of employment, or the offer of employment was conditional upon certain conditions being met, it will probably be more straightforward, and they can be informed that the offers of employment are being withdrawn, without the need for notice to be given, assuming notice terms have not been agreed orally or in some other way e.g. an exchange of emails.
Changing the start dates
If there is a binding contract in force between the parties (oral or in writing), delaying the start date of employment would amount to a change in contractual terms. In order to make the contractual change, an employer would need to check if it has a contractual right to do so. If not, it would need to obtain the new recruits’ express consent.
If there is no binding contract in force, the position may be simpler and the new start date may be communicated to the recruit (preferably in writing for completeness and record-keeping purposes). Keep in mind that, in this second scenario, you still hope that the employee will join you, all be at a later date than expected, and the employer would be advised to work with the employee-to-be regarding a suitable start date.
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