Can an Offer of Employment be Withdrawn?

Have you received an email from a potential employer stating that your employment offer has been withdrawn? You may be feeling confused because your potential employer didn’t indicate that they’ll be withdrawing their employment offer. 

Although this is legal, it is only legal under certain circumstances. 

In this article, we’ll outline when can an offer of employment be withdrawn legally, when it’s illegal for an employer to withdraw an offer of employment and the potential legal action you can take against an employer.

Read along!

Is it Legal to Withdraw an Offer of Employment?

In general, it’s legal for an employer to withdraw an offer of employment. Generally, when a job offer has been made, but you haven’t accepted the offer, the offer can be rescinded. This is because there is no legally binding contract between you and the employer.

The situations where it is legal for an employer to withdraw an offer of employment include the following:

• When there’s no longer a need for the position/role 
• You’re not considered a good fit for the position/role
• Your employment offer can be withdrawn if you fail a criminal background check or misrepresent anything that has been spoken about during the recruitment process
• When the employment offer was conditionally offered

What conditions allow the withdrawal of an employment offer?

An employment offer can be withdrawn by an employer under the following conditions:

• If you fail to possess the qualifications required for the job
• If you fail to give  satisfactory references
• If you fail to show that you’re eligible for employment in the country 
• If you fail to pass the required background checks
• If the employer discovers that you lied to them during the hiring process.  For example, if you’ve provided false information on your resume or if you’ve exaggerated your work experience

What steps can be taken if an offer of employment has been withdrawn?

There are several options for legal redress if your offer of employment has been rescinded illegally.  

Misleading and deceptive conduct

Firstly, your prospective employer could be liable for misleading and deceptive conduct if you’ve resigned from your previous position due to representations made by the new employer and the employment contract they provided to you for the new job.

Section 18(1) of the Competition and Consumer Act 2010 makes it illegal for individuals to engage in conduct that is misleading or deceptive or is likely to mislead or deceive. Therefore, you can claim that the employer has engaged in misleading or deceptive conduct by providing you with an employment offer or by misleading you regarding the position’s availability or terms. 

Furthermore, you can claim damages due to you resigning from your previous position on the basis of misleading and deceptive conduct. 

Breach of Contract

You can also make a breach of contract claim by writing a formal letter to your employer stating reasons supported by evidence informing the employer that they have breached the legal contract. You should hire a lawyer to ensure that the proper actions available to you are taken before you send the employer a formal letter.

You can claim a breach of contract on the basis that your employment had begun when you accepted the offer of employment provided to you, and therefore you are entitled to the same rights provided to other employees. You will be able to claim a breach of contract of employment even if you didn’t begin working or you didn’t receive an employment contract.  

You can claim a breach of contract to the acceptance of both verbal and written employment offers.

Discrimination

If you have accepted an employment offer as well as signed the employment agreement and have reason to believe that the offer of employment was rescinded due to a discriminatory reason, you can contact Fairwork Australia to lodge a complaint. You can also lodge a complaint with the Fair Work Commission. However, you must do so within 21 days. 

Section 351 of the Fair Work Act 2009(FWA) prohibits employers from discriminating against employees or prospective employees on certain grounds. 

The protected characteristics that you must not be discriminated against by employers according to section 351 of the FWA include  the following:

• Sexual orientation
• Race
• Political opinion 
• Colour 
• Gender
• Physical or mental disability 
• National extraction or social origin
• Age 
• Marital status
• Pregnancy
• Sex 
• Family or carer’s responsibilities 
• Religion 
• Relationship status
• Disability 
• Sexual preference

Can you Withdraw an Offer of Employment?

You can refuse the offer of employment if you have not accepted the offer. This is because there has been no legally binding employment agreement. There may be terms and conditions within the employment contract that stipulates legal actions that will be taken by the employer if the contract has been breached. To avoid legal consequences, you should make sure your retraction is permitted.

What are other reasons why an employer may withdraw an offer of employment?

Other reasons an employer may withdraw an offer of employment include the following:

• Unexpected changes in their business’s financial situation or other circumstances made the role that was offered no longer feasible
• If the employer had sent an offer of employment to the incorrect applicant
• If the position was accidentally double-filled due to errors made during the hiring process
• If the prospective employee behaves unprofessionally after the job was offered to them, for example, by causing delays in the hiring process, attempting to negotiate a higher salary than the salary they accepted, and disrespecting the staff members recruiting them
• If a prospective employee lies about their qualifications 
• If a prospective employee fails a drug test that was required to undertake for the position
• If the company’s business structure is modified and the position is no longer required
• If there are budget cuts that prevent the hiring of new staff
• if they receive alarming reference checks from your previous employers

Key considerations to make when an employment offer is withdrawn:

• Why was the offer of employment rescinded, for example, was it on the basis of a prohibited ground such as gender or race?
• Did the employer make a representation that they had offered employment? For example, was a start date provided to you by the hiring manager, or did they tell you to give notice of resignation to your current employer?
• Whether contract terms were still in the negotiation process and whether there were disagreements in regards to crucial terms and conditions
• Whether you were provided with a conditional job offer or an unconditional job offer
• Whether you have signed the employment agreement

Conclusion

In conclusion, an employer is entitled to withdraw an offer of employment.  However, in a majority of circumstances, it is illegal for an employer to withdraw the offer of employment they have provided to you.
Employment law can be complicated. If you believe your prospective employer has illegally withdrawn your offer of employment, you should hire a lawyer to provide you with legal advice on how to file a complaint and seek damages.