Conditional job offers: legal risks for care providers

In Kankanalapalli v Loesche Energy Systems Ltd, the Claimant accepted a job offer that was described as conditional on satisfactory references, a right to work check, and successful completion of a six-month probationary period. The offer letter set out the key terms of the contract and the parties undertook initial onboarding steps prior to the official start date. However, before the Claimant’s first day at work, the employer withdrew the job offer.

The EAT held that a binding contract had been formed when the Claimant accepted the job offer, as the offer letter contained ‘subsequent’ conditions which did not have to be satisfied before a contract could come into existence (rather than ‘precedent’ conditions which would have prevented a contract coming into existence until satisfied). The withdrawal of the job offer amounted to a termination, which required notice (and notice pay).

To minimise the risk of a breach of contract claim for notice pay where an offer is withdrawn, providers should review the content of their offer letters and recruitment practices to ensure that a contract is not being created sooner than intended.

Some providers include in offer letters a requirement to complete unpaid pre-employment induction training. The training is unpaid on the basis that the individual is not a worker or employee as no contract is in place. However, if, by virtue of the provider’s offer letter and recruitment practices, a contract came into existence when the individual accepted the offer, they would become an employee or worker and the induction training time would be subject to the NMW.

Unpaid pre-employment induction training may therefore come under even greater scrutiny in future (it is already something that HMRC looks closely at) and there is an increased risk of providers being found to have breached the NMW.

• review offer letters and onboarding documentation;
• review induction arrangements;
• assess the NMW implications of offering unpaid induction training (in the past and future).