Even if an applicant has not begun work yet, once an offer of employment has been made and accepted, a binding contract exists between the employer and applicant.
If an employer was to subsequently withdraw the offer, this could amount to a breach of contract. The applicant could then claim damages for the employer’s failure to terminate the contract in accordance with its terms.
What if there is discrimination behind the reason for the withdrawal of the offer?
There is no qualifying period of employment in order to bring a claim for discrimination. Therefore, job applicants are protected from unlawful discrimination throughout the recruitment and selection process.
In Birtenshaw v Oldfield  UKEAT, the Employment Appeal Tribunal (EAT), upheld the tribunal’s decision that the withdrawal of an employment offer following receipt of a medical report was discriminatory.
The facts of the case were as follows.
The Claimant, Mrs Oldfield, was interviewed for a permanent position with Birtenshaw. During the interview, her health was discussed. However, Mrs Oldfield was successful in her application and an employment offer was made, subject to a satisfactory medical report.
The medical report revealed mental health issues, cancer and intermittent lower back difficulties, however, she was deemed fit for work without restrictions or adjustments.
Birtenshaw withdrew the offer of employment. In response to this, Mrs Oldfield asked if she could be allowed to complete a probationary period so that she could demonstrate her fitness for work. These suggestions were rejected and she was given one week’s notice of termination of employment.
Mrs Oldfield pursued a claim in an employment tribunal. She claimed that the withdrawal of the job offer amounted to discrimination arising from disability. The tribunal accepted her claim and held that by having the job offer withdrawn, Mrs Oldfield was subjected to unfavourable treatment and there was a clear causal connection between her disability and this treatment.
Is there a defence for the discriminatory actions?
Where an employer treats an employee unfavourably because of something arising in consequence of their disability, the employer will be liable for discrimination arising from disability unless it can show that its actions can be objectively justified as a proportionate means of achieving a legitimate aim.
Birtenshaw was a provider of services for adults and children with special needs. It claimed that it was under a statutory duty to only employ a person if the individual is mentally and physically fit for the purposes of the work to be performed. The tribunal accepted this was a legitimate aim. However, it did not accept that the withdrawal of the offer was proportionate.
The medical report for Mrs Oldfield included a conclusion from the physician that she was fit for work without restrictions or adjustments. The tribunal held that the employer could have taken lesser measures such as making further medical enquiries or inviting Mrs Oldfield to complete a probationary period. It concluded that the decision to withdraw the employment offer was disproportionate and not justified.
The employer appealed to the EAT.
The EAT rejected the employer’s appeal and upheld the tribunal’s decision. They confirmed that the medical report stated that Mrs Oldfield was fit for work without restrictions or adjustments. Thus, the decision to withdraw the job offer was disproportionate and not reasonably necessary to achieve the legitimate aim.
What points can be drawn out of the EAT’s decision?
Section 60(1) of the Equality Act 2010 states that an employer must not ask job applicants questions about their health before offering them employment. This includes conditional job offers such as one made to Mrs Oldfield. However, employers can make a conditional job offer subject to receiving a satisfactory medical report for that individual.
If the employee has an underlying health condition that may amount to a disability under the Equality Act 2010, employers should be careful about withdrawing the offer. It would be unlawful discrimination to withdraw the offer because of something arising from the applicant’s disability unless this can be objectively justified. Therefore, employers 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
The medical report for Mrs Oldfield revealed that she did not require any sort of adjustments and was fit to do the job without restrictions. The EAT highlighted that a balancing exercise must be carried out by the employer in evaluating whether its legitimate business needs are sufficient to outweigh the discriminatory impact on the employee, and consider if its aims could reasonably be achieved by less discriminatory methods. In this case, the employer failed to make any further investigations into the nature of Mrs Oldfield’s health condition despite the fact the doctor specifically invited requests for further clarification in his medical report. It was clear that the employer failed to carefully consider the medical evidence and the employee’s prognosis, including the employee’s own opinion of her medical condition.