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It depends.
In Kankanalapalli v Loesche Energy Systems the Claimant was offered a job as a project manager subject to receipt of satisfactory references and a right to work check. Mr K accepted the offer and began taking steps towards starting his new job. When the company withdrew the offer before his start date for reasons which were unrelated to references or the right to work check, Mr K argued that this amounted to a breach of contract due to lack of notice.
A first instance employment tribunal found that no binding contract had arisen because the conditions of the offer (references & the right to work check) had not been satisfied and therefore the employer was entitled to withdraw the offer and no right to notice arose.
Mr Kankanalapalli appealed the decision and the Employment Appeal Tribunal (EAT) agreed with him: the employer was not entitled to withdraw the offer without notice.
The EAT held that:
- The tribunal did not properly consider whether the offer conditions were conditions subsequent or conditions precedent. Conditions subsequent are conditions which apply after the contract begins. Conditions precedent are conditions which must be met before the contract can come into existence.
- In this instance the conditions were conditions subsequent. They did not prevent the creation of the contract. Had Mr Kankanalapalli been unable to meet them they could have ended the contract. They rescinded the offer for other reasons but a contract still had been formed.
- On the facts of this case the offer letter had set out the key contractual terms of the offer and the individual had begun taking steps to prepare for employment in the new role. A contract had been formed.
- A term requiring reasonable notice had to be implied into the formed contract. Given that this was an offer for a senior role with a lengthy recruitment process, three months’ notice was found to be appropriate.
- In withdrawing the offer without notice the employer was in breach of contract.
The conclusion: get your ducks in a row before formalising an offer?
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