Where a new employee is no longer able to start work on the agreed date, can the employer retract the offer of employment?

Whether or not an employer can retract a job offer where the employee cannot start on the agreed date will depend on whether the date was an agreed term and condition of the employee's employment or simply a proposed start date. If the job offer letter clearly sets out the start date and the employee signed in acceptance of this, if the employee can no longer comply with this, they will usually be in repudiatory breach of the contract of employment, enabling the employer to terminate it. This means that the employer can retract the job offer. However, before doing so, the employer should advise the prospective employee that a failure to start on the agreed date will result in the offer being withdrawn, thus giving them the opportunity to reconsider their position.

Where the start date is being delayed by only a day or so, this may not amount to a repudiatory breach of contract because the breach may not be sufficiently serious. This means that the employer cannot automatically terminate the contract of employment. The employer's remedy for breach of contract in this case would simply be not to pay the employee for the days not worked. Similarly, where the reason for a failure to start work on the agreed date is due to sickness or incapacity or falls within one of the statutory time off rights (for example the right to reasonable time off to care for dependants) this will not amount to a breach of contract on the employee's part.

If the date was only a proposed start date and was still under discussion, the prospective employee may be able to assert that no date had in fact been agreed as a term and condition of employment and therefore they have not breached the contract by not being able to start on a particular day.