Conditional offers of employment are not a new phenomenon. They have, however, become more important as the UK Government tightens up the rules on employing foreign nationalities that could, in some circumstances, make an employee liable to criminal prosecution.
Should all offers of employment be conditional?
In a way, they have often been so in the past- if only to the extent of receipt of a satisfactory employment reference. New entrants to the professions are often recruited early in their university career and it is common practice for prospective employers to offer employment subject to the candidate achieving a certain class of degree. When seeking promotion once in employment requires the candidate to demonstrate that he or she has maintained their qualification by successfully completing a mandatory minimum number of training courses or training sessions each year.
Conditional offers of employment are not limited to the professions. Truck drivers and bus drivers will have to provide documentary evidence that they are licensed to drive a vehicle of the class that they are being employed to drive.
Under the United Kingdom's Immigration Act 2016, which came into effect on 12 July 2016, employers can face a criminal prosecution for employing an illegal worker where they have reasonable cause to believe that the worker does not have permission to work in the UK. The effect of which is that …
All offers of employment are now conditional.
That is because it is now mandatory for UK employers to ensure that all employees, and not just those from outside the UK, can prove their entitlement to enter or remain in the UK and to work in the UK. There is no longer such a thing as an unconditional offer of employment.
What can an employer do to ensure that a prospective employee satisfies all the conditions that are likely to placed on an offer of employment? Here are some suggestions:
When inviting candidates for interview, they should be informed that they are required to bring the following documents with them to the interview and that if they do not do so they will not be interviewed and that the vacancy may be filled by another candidate:
- A British Passport or long form birth certificate or other documentary evidence showing that the applicable is entitled to enter or remain in the UK and also to work in the UK;
- The name and address of their current employer to what an application for an employment reference may be sent, or other referendum if appropriate;
- Documentary proof of the qualifications they say they hold, driving licenses, etc .; and
- Documentary evidence that they have maintained their professional qualification, if required.
On arrival for interview, all candidates should be asked to produce the relevant documents for inspection and copying before their interview commences. If any candidate can not produce the necessary documents, you should decline to interview him or her. This does not prevent you from interviewing those candidates at a later date when they are able to produce the necessary documents.
Any offer of employment should be made conditional on the successful candidate compliance with the outstanding conditions – such as a satisfactory reference and or a clear criminal records search if the nature of the employment requires it. The successful candidate should be warned that their failure to fulfill these conditions will result in the offer of employment being withdrawn.
No contract will exist if the candidate fails to satisfy the conditions.
On a cautionary note, before withdrawal a conditional offer of employment take care to ensure that your reason for doing so is based solely on the candidacy's failure to satisfy the conditions and not because of some protected characteristic. It is always good practice to document your reasoning and to explain why you made your decision to the deserved candidate.