Making a job offer

Author: Kalpana Murthy

Introduction

This line manager briefing examines the issues that line managers should take into account, and the steps that they should take, when making a job offer.

Making the offer

Before making a job offer, line managers should ensure that they have authority to make the offer. The manager should also consider when and how to make the offer, and be prepared to answer the candidate's questions about the organisation and the role.

Authority

Prior to making a job offer, the line manager should check with HR and/or a more senior manager that they are authorised to make the offer. For example, the board of directors may need to give final approval to filling the vacancy. The manager should also ensure that the terms and conditions that they are about to offer have been approved by the appropriate manager.

Timing the offer

The line manager should contact the successful candidate to offer them the role as soon as possible after the conclusion of the selection process. Acting quickly creates less opportunity for the candidate to accept an offer from another employer, or lose interest in the recruitment process, thereby helping to ensure that the best person for the role is recruited.

Informing the successful candidate

The decision as to how to make a job offer rests with the organisation and the manager. There are advantages to telephoning a candidate:

• It lends a personal touch to the occasion, which can be persuasive if the candidate is unsure about whether or not to accept the offer.
• It allows the manager to answer any questions that the candidate may have.
• Speaking to the candidate ensures that they receive the offer. If the manager makes an offer by email, for example, until the manager receives a response to the email, they may not know if the candidate has received it.

The manager should telephone the candidate in a private room, so that details of the offer remain confidential. When telephoning the candidate, the manager should have to hand relevant information about the organisation and role, including:

• salary;
• contract type, for example whether it is a permanent or a fixed-term contract;
• start date, which may depend on whether or not the candidate has to work a notice period;
• job title or job description;
• location;
• working hours; and
• career prospects.

If the offer is conditional, the manager should explain this (see Conditional offers).

The candidate may need time to consider the offer before accepting or rejecting it. In these circumstances, the manager should specify the date by which the candidate should make a decision and how the candidate should communicate their decision to the manager, for example by telephone. A few days should be sufficient, but how quickly the manager needs to fill the role may dictate the time frame.

The preferred candidate should not be given too long to make their decision because the manager may have second- and third-choice candidates whom they would not want to lose and who may be considering other offers.

The manager should explain that they are available to discuss any queries that the candidate may have in the meantime.

If the candidate accepts the role, the manager should follow up the offer with a formal letter setting out the terms of the role (see Obtaining a signed employment contract). The letter should be marked "private and confidential" and should be sent to the candidate's home address (or, if different, the address to which the candidate has asked the organisation to send correspondence) rather than to their work address. The manager should liaise with HR to prepare the offer letter.

Informing unsuccessful candidates

Line managers should inform all unsuccessful candidates who have attended an interview about the employer's decision not to offer them the role. If the manager has second- and third-choice candidates, they should wait until the preferred candidate has accepted the role before informing them about the decision.

Conditional offers

When offering a candidate a role, line managers should consider whether or not it is necessary to attach any conditions to the offer.

Purpose

A job offer becomes binding once the candidate has accepted it. If the manager attempted to withdraw the offer after it had been accepted, this would amount to a breach of contract entitling the individual to sue the employer for damages.

When making a job offer, the line manager should consider whether or not to make it subject to conditions. If a candidate accepts a conditional offer, this will give certainty to the employer and the individual, but the employer will be entitled to withdraw the job offer if the conditions are not met, without being in breach of contract.

The manager should specify a date by which the conditions need to be satisfied, to ensure that the process keeps moving. Further, the employee may not be prepared to resign from their existing role until they have an unconditional offer of employment.

Conditions

The following are some of the most common conditions that employers attach to job offers:

• References: In most circumstances, it will be appropriate for a manager to make the job offer conditional on receipt of satisfactory references (see References).
• Qualifications: Where the attainment of a certain qualification is relevant to the performance of the role, the line manager could make the job offer conditional on sight of examination transcripts, certificates or other documents verifying the candidate's qualifications.
• Examinations: It may be appropriate for the manager to make the offer subject to the candidate taking and passing an exam, for example a driving test. In certain circumstances, the manager may specify additional conditions, for example passing the test on the first attempt or achieving a minimum score.
• Medical test: Some roles require the jobholder to have a certain level of fitness to perform the role effectively. The manager could require the successful applicant to undergo a medical examination to confirm their fitness for the role, but only if the test and the standard of fitness required are relevant to the performance of the job. The manager should take care where a medical test indicates that the employee is disabled (see Medical examinations).
• Proof of right to work in the UK: If the organisation has not yet seen proof of the candidate's right to work in the UK, it will be appropriate for the manager to make the job offer conditional on receipt of evidence of the candidate's right to work in the UK (see Employing foreign nationals).
• Disclosure and Barring Service certificate: For some roles, for example jobs that involve working with children, the manager will need to make the job offer conditional on a satisfactory criminal record check (see Criminal record checks).
• Restrictive covenants: Some candidates, particularly those applying for senior or technical roles, may be subject to restrictive covenants on termination of their current role. Restrictive covenants place conditions on the individual's future employment, for example they may be prohibited from working for a competitor for six months following termination of their current role. It may be appropriate for the manager to offer the candidate the role on the condition that they are not subject to any restrictive covenants preventing them from performing the role. The manager could ask for a copy of the individual's employment contract to check whether or not any restrictive covenants apply.

Where conditions are attached to a job offer, the manager should explain this to the candidate and set out the conditions in writing. If the employer is responsible for making any checks, for example applying for references, the manager should ensure that these are conducted quickly.

Withdrawing the offer

If a candidate fails to meet one or more of the conditions pertaining to a conditional job offer, the manager may withdraw the offer. The manager should telephone the individual to explain that the organisation is withdrawing the offer and the reasons why, and follow this up in writing.

The manager should take notes of the offer process, what steps were taken to satisfy any conditions, and why the decision was made to withdraw the offer. This will help the manager to explain why the offer is being withdrawn. It will also help the organisation to prove that the withdrawal was made for good reasons in case the candidate argues that it was made for a discriminatory reason, for example that the employer has found out that the candidate is pregnant.

Criminal record checks

Depending on the role for which the candidate has applied, the line manager may need to find out whether or not the individual has any criminal convictions before they can start work. Where relevant, the manager should make a satisfactory criminal record check with the Disclosure and Barring Service (DBS) a condition of the contract. (Prior to 1 December 2012, applications were made to the Criminal Records Bureau.)

There are two ways for employers to check candidates' criminal records. Employers that are registered with the DBS can, in conjunction with the prospective employee, apply for a disclosure, which shows the candidate's criminal record. However, this is available only where the employer is legally permitted to request a check for the job in question. The employer will not receive a copy of the certificate (except in limited circumstances), but can ask the candidate to see it. Where the candidate already has a DBS certificate and subscribes to the online DBS update service, a registered employer can obtain up-to-date information from this service.

Two kinds of disclosure are available:

• Standard disclosure: This includes information about spent and unspent convictions and details of reprimands, cautions and final warnings.
• Enhanced disclosure: This includes the information provided by the standard disclosure, a check of local police records and, where the job involves working with children or vulnerable adults, information about whether or not the individual is on either of the barred lists held by DBS.

A basic disclosure (or criminal conviction certificate) is also available to individual applicants (through Disclosure Scotland rather than the DBS), and shows details of unspent convictions only. Employers can ask candidates for sight of a basic disclosure.

The HR department normally deals with DBS disclosures. Which disclosure is relevant will depend on the role, and the manager should liaise with HR over what the organisation requires. However, line managers should be aware that:

• the organisation will normally conduct a DBS check only after having offered the candidate the role;
• the organisation should inform the candidate which type of check it requires and why;
• if a disclosure reveals that the candidate has a conviction, the manager should not discount them automatically; and
• if the candidate does not subscribe to the DBS update service, there may be a delay to the recruitment process in obtaining a DBS certificate, so the manager should ensure that the certificate is applied for as soon as possible after the job offer is made.

Where a disclosure reveals that the candidate has a conviction, the manager should check the organisation's policy on recruiting ex-offenders and discuss the situation with HR.

Different procedures relating to criminal record checks apply in Scotland.

Employing foreign nationals

Employers should check that successful job applicants have the right to work in the UK, because it is a criminal offence to employ someone who does not have the relevant permission.

Checking right to work in the UK

Before permitting an employee to commence work, the employer should check whether or not they have the right to work in the UK. HR normally deals with this aspect of the recruitment process, but line managers should be aware of the main issues that apply and ensure that checks are performed in a timely manner so as not to delay the recruitment process.

To determine whether or not a candidate has the right to work in the UK, the employer should:

• ask the applicant to produce original documents indicating that they have the right to work in the UK from either List A or List B (see below);
• check that the documents relate to the job applicant; and
• keep a copy of the documents.

Alternatively, the employer may be able to use the Home Office online right to work checking service in certain circumstances.

List A documents provide evidence that the individual has the right to work in the UK indefinitely, for example a UK passport showing that the holder is a British citizen. List B documents provide proof that the individual has a limited right to work in the UK, for example a passport endorsed to show that the holder is allowed to stay in the UK and do the type of work in question. An individual needs to provide one document, or two documents in combination, from either List A or List B.

The organisation will determine when it will check candidates' right to work in the UK. For example, the manager may be asked to explain, during the offer process, that the employer requires documentary evidence of the candidate's right to work in the UK before they start work.

Race discrimination

Line managers should not make assumptions about a job applicant's right to work in the UK on the basis of their colour, race, nationality or ethnic or national origins, or the amount of time that they have lived in the UK. Less favourable treatment of a candidate on the ground of race will amount to race discrimination.

To help avoid discrimination, the employer should treat all job applicants consistently. It should ask all candidates to provide evidence of their right to work in the UK at the same stage of the recruitment process.

Medical examinations

It is unlawful for line managers to ask job applicants:

• to answer questions about their health or a disability;
• to complete a medical questionnaire; or
• to undergo a medical examination,

before offering them a job.

There are limited exceptions to this rule. For example, line managers can make enquiries about a job applicant's health to establish whether or not the employer is under a duty to make reasonable adjustments in connection with the recruitment process (such as providing a ground-floor interview room where the candidate is a wheelchair user), or to establish whether or not the applicant will be able to carry out an intrinsic function of the job after taking into account reasonable adjustments that could be made.

However, line managers can ask a candidate to undergo a health check once they have been offered the job. This is appropriate only where determining the individual's level of fitness is relevant to establishing their ability to perform the role.

The manager:

• should not single out disabled individuals for the medical test;
• should make taking the test and achieving the required level of fitness a condition of the job offer;
• should ask candidates to give written consent before undergoing any medical examination (and refer to HR for the rules that apply to obtaining the candidate's consent); and
• should treat any information revealed as confidential.

Where an applicant refuses to undergo a medical examination, the manager will be entitled to withdraw the job offer, as long as the offer was made conditional on the applicant completing the test.

Where a medical test indicates that the candidate has an underlying health condition, the manager:

• should not withdraw the job offer immediately;
• should discuss the situation with the candidate;
• should seek further information about the nature of the health condition and the impact that it is likely to have on the individual's ability to do the job;
• should consider what reasonable adjustments the employer could make to enable the individual to take up the post; and
• should, if withdrawing the job offer, explain this to the candidate over the telephone, and follow it up in writing, making clear the reasons for the withdrawal and what steps the employer took prior to reaching this decision.

References

Employers are not required by law to obtain references on a prospective employee. However, most employers do seek references on successful candidates, because they allow them to check some of the information that the candidate has supplied.

Timing references

It is good practice for managers to conduct reference checks only after they have made a job offer to a candidate. This helps to ensure that selection decisions are objective, rather than based on a previous manager's opinion, for example. Checking all candidates' references prior to making a job offer will be a waste of time and resources.

Managers should make job offers conditional on receipt of satisfactory references.

Consent

Managers should obtain an applicant's express consent prior to requesting a reference from their referees, because the candidate's current employer may not be aware that they have applied for the role.

The manager should check the employer's policy on obtaining references, which should set out the process for requesting references, including how to obtain the candidate's written consent. For example, the employer may ask candidates to sign a statement on the application form confirming that they agree to the employer seeking references, or it may include a consent form with the offer letter.

Unsatisfactory references

The manager may receive a reference that contradicts the information provided by the candidate. For example, the dates of employment provided by the candidate and their employer might be different. The line manager should not assume that the prospective employee has given misleading information, or that they have done so deliberately, and the manager should seek an explanation from the candidate.

If the reference contains negative information about the applicant, the manager should observe the following guidelines:

• The manager should consider whether or not it would be appropriate to raise queries with the referee or the employee about the information contained in the reference. The manager could, for example, invite the employee to a further interview.
• If the information is of a factual nature, for example that the candidate failed to meet sales targets, the manager should consider whether or not it is relevant and, if it is, whether or not it is sufficient to render the individual unsuitable for the role.
• The manager should bear in mind that, just because someone is having a problem is their current role, it does not necessarily mean they will be unsuitable for the new post.
• Where a reference contains adverse comments based on opinion rather than fact, for example that the candidate lacks enthusiasm, the manager should consider the accuracy of the information and compare it to what they know about the candidate. The information may have been influenced by personal dislike and may be irrelevant.

If, after careful consideration, the manager decides to withdraw the job offer, they can do so without breaching the contract, provided that the offer was made conditional on obtaining satisfactory references.

Line managers should note that employers are not, in most circumstances, under a legal duty to provide a reference, and that many employers adopt a policy of not giving references or giving only minimum information. Therefore, a failure to provide a reference or provision of a sparse reference is not an indication that the employee is not good at their job. In such circumstances, the manager may ask the referee to explain their organisation's policy on giving references.

Terms and conditions of employment

Employees' terms and conditions of employment should be contained in a written contract of employment.

Written statement of particulars of employment

Employers must put key employment terms in writing. The document that incorporates these terms is known as the "written statement of particulars of employment". The employer needs to give a written statement to all employees who are employed for one month or more, within two months of the employee starting work.

Some of the items in the written statement need to be provided in one document, known as the "principal document". These are:

• the names of the employer and employee;
• the date employment began, and whether or not any previous employment counts towards the employee's continuous service with the company;
• the scale or rate of pay or method of calculating pay;
• the intervals at which the employee is paid (for example weekly or monthly);
• any terms relating to hours of work (including terms relating to normal working hours);
• any terms relating to entitlement to holiday, including public holidays, and holiday pay (in sufficient detail to enable the employee to calculate entitlement, including entitlement to accrued holiday pay on termination);
• the job title or a brief job description; and
• the place of work or, if the employee will be required to work at different places, an indication of this and a statement of the employer's address.

The other items can be provided in instalments. These are:

• any terms relating to incapacity for work due to sickness or injury, including any provision for sick pay;
• any terms relating to pensions and pension schemes;
• the length of notice that the employee is entitled to receive, and obliged to give, to terminate the contract of employment;
• where the job is temporary, the period for which it is expected to continue;
• details of any relevant collective agreements that affect the contract;
• specified details relating to any overseas assignments; and
• details of the employer's disciplinary rules and procedures, the person to whom the employee can apply if they have a work-related grievance or is dissatisfied with a disciplinary decision relating to them or any decision to dismiss them and the manner in which such an application should be made, and an explanation of any further steps in the discipline or grievance procedure.

If another document, for example the staff handbook or a relevant procedure, provides the relevant information in relation to sickness, pensions or dismissal, disciplinary and grievance procedures, the written statement can refer to this document instead of setting out the information, provided that the document is reasonably accessible to the employee. Similarly, the written statement can refer to any laws or collective agreements in respect of the notice terms.

Obtaining a signed employment contract

When a candidate accepts the employer's offer of employment, the parties enter into an agreement, albeit an oral agreement if the offer is made and accepted over the phone. The employer and employee are not required to enter into a written contract of employment, but it is good practice for the employer to require the employee to sign a document confirming their acceptance of the terms and conditions of employment.

The written statement of particulars of employment is not an employment contract. However, as the employer is required to provide a written statement, it may prefer to have one document including the terms required under the written statement and any other terms and conditions of employment to avoid any dispute as to the terms of employment.

The line manager should liaise with HR with regard to the provision of the letter of engagement and/or employment contract. They should ensure that any oral offer, formal offer letter and employment contract are consistent in relation to the terms and conditions offered.

Drafting the contract

The HR department is likely to have a model employment contract. The manager should liaise with HR to review the contract, to ensure that it includes all of the terms and conditions governing the employment relationship, before HR asks the employee to sign it.

Some of the issues that the manager may need to check include:

• whether the contract is for a fixed or indefinite term;
• whether the contract is full or part time;
• the contract start date, taking into account any notice period to which the employee is subject;
• the salary and how often it will be reviewed;
• whether or not the employee will be entitled to a contractual bonus or commission;
• whether or not it is necessary to include restrictive covenants (which limit what an employee can do after the employment relationship has ended) and intellectual property, confidentiality and garden leave clauses; and
• whether or not to build in flexibility, for example in terms of job duties, working hours or location.

Negotiation

When a manager offers an applicant a job, the applicant may try to negotiate some of the terms and conditions of employment. The most common terms that candidates seek to negotiate include salary, commission, benefits (for example gym membership) and restrictive covenants (which limit what an employee can do after the employment relationship has ended).

Line managers should consider a candidate's proposals in conjunction with HR and/or a more senior manager. The manager should give the individual a date by which the employer will respond.

It may be appropriate for the manager to agree to the candidate's proposals where they are particularly keen to recruit the individual. In some cases, the manager may be unable to agree to all of the candidate's suggestions, but may be able to reach a compromise. The manager could therefore review the contract as a whole to determine whether or not there is room for manoeuvre. For example, where a prospective employee asks for a higher salary, this may not be possible, but they may be prepared to accept an increased contribution to their pension plan.

Equal treatment

When determining and/or negotiating employment terms, line managers should be aware of the prohibition on discriminating against employees with a protected characteristic, for example sex or race. Line managers should become familiar with the right to equal pay for equal work, because determining an employee's salary has the potential to give rise to discrimination.

For example, where a male recruit asks for more money than the manager has offered, agreeing to this could discriminate against the other employees who perform the same role if they are female. If the manager is considering agreeing to more favourable terms, this should be based on non-discriminatory factors, for example skills or knowledge, and the manager should keep a written record of the decision-making process.

Reasonable adjustments for disabled employees

Employers have a duty to make reasonable adjustments to any provision, criterion or practice and to any physical feature of the premises that they occupy, where a disabled employee is put at a substantial disadvantage in comparison with employees who are not disabled.

Where a line manager makes a job offer to a disabled employee, they should liaise with the employee, HR and occupational health to ensure that all reasonable adjustments are in place prior to the employee's first day. Putting in place reasonable adjustments may take some time, so the manager should make arrangements to prepare for the employee's arrival as soon as they accept the role. For example, installing voice recognition software on the employee's computer may require the organisation to order specialised equipment.

Keeping in touch

Looking for a new job can be a difficult and sometimes stressful experience for candidates. Line managers should keep candidates abreast of the recruitment timetable and explain any delays. This can help to ease any pressure on candidates and demonstrate that the employer cares for its staff.

Often, several months elapse between the time when a candidate accepts a job offer and their first day in the new job. The individual may have to work out a notice period, may take a break between jobs, or may take time off to relocate. The manager should maintain contact with the employee during this period. The manager could:

• invite the employee to a work social function, for example a Christmas party or team lunch;
• invite the employee to any relevant training sessions or seminars;
• appoint a colleague to act as a mentor for the new recruit, giving the new employee the opportunity to ask questions that they may not want to ask the manager;
• send the individual information about any employee networks or social clubs;
• send the employee any internal news updates; and
• send the employee joining instructions for their first day, explaining what the organisation expects of the employee.

Keeping records

Managers should be aware that any record collected, created and stored about an individual will give rise to obligations under the General Data Protection Regulation (GDPR). These records should be held confidentially and kept for no longer than necessary. Ideally, the HR department will keep the records. Stringent rules apply when collecting special categories of personal data (eg information about an employee's health or racial or ethnic origin) and criminal records data. Line managers should seek further advice about their duties under the GDPR from the HR department.

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