When can you rescind a job offer?

by |
Sometimes after you’ve made an offer and the employee has accepted the offer you find yourself in the position of wanting, or needing, to withdraw a job offer – is it ever ok to rescind a job offer from an employee who has already accepted?  
According to Filion Wakely Thorup Angeletti associate Roslyn McGilvery, there are certain circumstances under which you can legally withdraw a job offer:
You’ve made a conditional offer subject to reference checks
An offer can be withdrawn if it was made conditional on positive results from reference and background checks. With this kind of offer the employer can withdraw it if they find out any relevant information that shows the person is unsuitable for the job. Note that the background information should not involve a discovery about protected classes, such as religion, pregnancy or disability.
“In this case the employer would likely be within its rights to withdraw the offer if the employee’s references aren’t consistent with what the employer was able to learn from the resume and interview process,” McGilvery said.
The employee has lied during the recruitment process
Another scenario that would justify the withdrawal of the offer would be if it was discovered that the applicant had misrepresented themselves on their resume. Even Yahoo’s CEO made fraudulent educational claims his resume, so don’t think it’s not worth checking.
“The classic case would be if the employee lists academic credentials on their resume, which they never earned,” McGilvery said. “If the employer can say it was induced to hire the employee based on these fraudulent credentials and it would not otherwise have hired them, the employer would have a good case for putting an end to the employment relationship.”
Outside of these specific situations, employers could be putting themselves at risk for a wrongful dismissal case. According to McGilvery, cases decided against the employer usually have damages at the lower end of the scale, however, in 2011 the Ontario Human Rights Tribunal found a withdrawn conditional offer of employment was discriminatory because the decision was made based on a disability. They awarded the rejected candidate $10,000.

It's another reminder to HR that protected traits apply at every stage of the hiring process.
  • Mary on 2014-03-05 2:13:21 PM

    What case are you quoting from the HRT in 2000?

  • Caitlin Nobes on 2014-03-07 10:13:02 AM

    The case is Davis v Toronto (City) 2011: http://canlii.ca/t/fl5bm

    The incident happened in 2000, but the case was decided in 2011.

  • Gareth McGuinness on 2014-09-29 3:14:12 PM

    My wife was offered a job at Kelsey's and, as she was told, she tendered her resignation at her current employer. Today (2 days before her last shift, and 3 days before she was due to start at Kelseys) they sent her an email saying they overhired and have to withdraw her from the hiring process. Does this qualify as wrongful dismissal?

  • Jennifer on 2014-09-30 1:50:29 PM

    It doesn't qualify as wrongful dismissal, but it likely is actionable. You need to speak to a lawyer.

  • Mr-fool on 2016-07-19 12:20:15 PM

    I would like to comment on Gareth McGuinness matter. You have to consider the cost of the legal action and the time it takes. I mean you might be legally right, but a cost and benefit analysis is needed

  • Colleen on 2016-08-24 5:20:02 PM

    What if the new employee accepts start date and then on that day states they are not available for two additional weeks?

  • Colleen on 2016-08-24 5:27:57 PM

    What if the new employee accepts start date and then on that day states they are not available for two additional weeks?

  • Ang on 2016-09-11 9:30:11 PM

    I am a building manager and recently accepted a live in position, currently my position is the same now I have found myself homeless as a gave notice to my current employer and my new employer just advised that there is no unit for me to move in as they rented it out and the position is on hold until they find a unit. I am now homeless and jobless due to non planning of this organization what can I do?

HRM Online forum is the place for positive industry interaction and welcomes your professional and informed opinion.

Name (required)
Comment (required)
By submitting, I agree to the Terms & Conditions