Offer letter

The offer letter is not the thing before the contract. It is the contract.

The usual picture of hiring is that you send an offer, then later you send "the contract", and the job becomes legally real when that second document comes back signed. Every part of that is wrong, and the two errors cost money in opposite directions.

A contract of employment needs an offer, an acceptance and consideration. It does not need a signature, it does not need a document titled contract, and it does not need anybody to have started work. So an unconditional offer accepted by return of email is the contract of employment, and everything sent afterwards is documentation of a deal that already exists.

Withdrawing an offer is more expensive than people expect

Pulling an accepted offer is a breach of contract. The usual measure of damages is what the person would have earned during the notice period they had by then acquired, so a generous contractual notice period in the offer is a number worth looking at twice.

Two things that are commonly assumed to help, and do not:

• The two year qualifying period is irrelevant. It belongs to unfair dismissal. This is a contract claim, and a contract claim has no service requirement.
• Not having started does not mean not protected. The Equality Act 2010 covers applicants from the point of application. If the reason for the withdrawal is a protected characteristic, service is irrelevant and so is whether they ever set foot in the building.

The conditional offer exists to solve exactly this

A conditional offer whose condition fails lapses. Nobody breaches anything, nobody owes notice, and there is nothing to withdraw. That is the whole point of the device, and it works only if the conditions were stated before acceptance. A condition introduced after somebody has accepted is not a condition. It is a proposed variation of an existing contract, and it needs their agreement.

So the conditions belong in the offer letter itself, in words, not in the contract that follows it and not in a policy nobody has been shown.

Each check has its own window, and two of them are narrow

Right to work: after the offer, before the first day

GOV.UK puts it plainly: you must check that a job applicant is allowed to work for you in the UK before you employ them. Do it after they have started and the statutory excuse against a civil penalty is gone, because the excuse depends on the check having been done properly and in time. Do it only on the candidates whose names or accents prompted you to wonder, and it is direct race discrimination.

The way both risks are avoided is the same: everybody, at the same point, every time. That point is normally acceptance of a conditional offer, which is late enough to be practical and early enough to leave time.

Health: after the offer and nowhere before it

Section 60 of the Equality Act 2010 stops a prospective employer asking about the health of an applicant before offering work. A medical made a condition of the offer is lawful precisely because the offer came first. The useful corollary is what it tells you to go and remove: health questions on the application form, and the sickness absence box on a reference request sent out before an offer exists.

Criminal records: the level is set by law, not by preference

A basic check can be requested for any role. Standard and Enhanced are available only where the role appears in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, and the DBS will refuse an application for a role that does not qualify. Asking anyway is not merely futile. It means seeking criminal record data you have no lawful basis to process, and inviting disclosure of convictions the candidate was entitled to treat as spent.

And the contract is already due on day one

Section 1 of the Employment Rights Act 1996 requires the written statement of employment particulars to be given not later than the beginning of the employment, and the main particulars have to be in a single document. Two facts follow that catch people out:

• It is not two months. That was the old rule. It changed in April 2020 and a great deal of published guidance, and a great many offer letter templates, still assume the old one.
• It says worker, not employee. Casual, agency and zero hours staff are entitled to a written statement too, which is where most of the non-compliance actually sits.

That collides with how offer letters are normally written. "Your contract of employment will follow in due course" is a promise to be late. The offer letter is usually the last thing sent before the first day, so if the particulars are not with it, somebody has to remember to send them in the gap.

There is a commercial reason to send them early as well as a legal one. Somebody who accepted a job on the strength of a one page letter has agreed to a one page letter. Any term they first read on their first day is a term they can argue was never part of what they accepted, and restrictive covenants are the ones that argument is usually about.