Before the Contract: How Casual Recruitment Promises Become Binding Employment Obligations
Photo: Ministry of Labour and Employment, GODL-India, via Wikimedia Commons
There is a persistent belief among some employers that the employment relationship begins when the employee does — that anything said or promised during recruitment is, in legal terms, merely prelude. It is a comfortable assumption, and an expensive one. Employment tribunals routinely hear claims rooted entirely in the recruitment stage: a salary figure mentioned in passing, a relocation package described as 'standard', a start date relied upon when the candidate resigned from a secure role.
The law does not draw a bright line at the first day of work. For employers, that single fact should reshape how recruitment is documented, communicated and conducted.
The Offer Letter Is Not a Formality
A job offer, once accepted, is a contract. It may not be the full statement of particulars required under section 1 of the Employment Rights Act 1996, but it is capable of creating binding obligations on both sides. If the offer letter is vague, contradictory or drafted in haste, those obligations are defined by whatever the document actually says — not by what the employer intended.
Common errors we encounter:
- Conditional offers sent without conditions. An employer intends the role to be subject to references, right-to-work checks and a satisfactory DBS certificate, but the letter simply says 'we are pleased to offer you the position'. If a reference later proves unsatisfactory, the employer may face a wrongful dismissal claim rather than a clean withdrawal.
- Salary and benefits stated loosely. 'Around £45,000 depending on experience' invites dispute. So does a bonus described as 'typical for the team' when the bonus scheme has discretionary criteria the candidate never saw.
- Start dates treated as firm. Where a candidate resigns in reliance on a start date and the employer then delays, the resulting claim for loss can be substantial — sometimes a full salary for the notice period they would have worked.
The remedy is straightforward: use conditional offer language, attach the contract and key policies, and ensure every figure in the letter matches the contract it precedes.
What Was Said in the Interview
Oral statements during recruitment can be incorporated into the contract or, in some cases, give rise to misrepresentation claims. A hiring manager who tells a candidate 'this role leads to partnership within three years' or 'relocation support is always provided' has made a representation the business may be held to — particularly if it is absent from the written contract and the contract contains no entire-agreement clause excluding pre-contract statements.
Practical discipline follows. Interviewers should be briefed on what may and may not be said about progression, benefits and job security. Anything material should be confirmed in writing, accurately. And every offer should include a well-drafted entire agreement clause confirming that the written contract supersedes prior discussions.
Sponsorship, Probation and Notice: Getting the Structure Right
For sponsors holding a UK Home Office sponsor licence, recruitment carries further obligations. The certificate of sponsorship, the salary threshold and the role's genuine availability must all align before an offer is made; a candidate who resigns abroad in reliance on a flawed sponsorship offer may have a claim, and the licence itself may be at risk if the process was not compliant.
Probationary periods deserve equally careful drafting. A probation clause should state clearly that the period is a time-limited assessment, specify the shortened notice applicable during probation, and avoid implying that dismissal during probation requires fault. Employers sometimes assume probation gives free rein; it does not. Discrimination and unfair dismissal principles still apply, and a poorly handled probation termination can be as costly as any other dismissal.
Notice periods, too, must be consistent. An offer letter stating one notice period and the contract another creates a dispute waiting to happen.
Discrimination Risk Before Day One
The Equality Act 2010 applies to recruitment in full. Job adverts, application screening, interview questions and pre-employment health enquiries are all capable of founding a discrimination claim — even where no employment ever commenced. Questions about plans for children, visible health conditions or the extent of a disability are not merely poor practice; they are evidence.
A claim from a rejected candidate will not always succeed, but defending one costs management time, legal fees and reputation. Structured interviews, documented selection criteria and consistent questioning are the cheapest insurance available.
A Short Audit Before You Hire
Before your next campaign, review your templates: is every offer expressly conditional? Do your letters and contracts agree? Are interviewers trained on permissible questions? Do sponsorships, probation terms and notice periods hold together as a coherent whole?
If any answer gives you pause, our employment team at Bentley Law can audit your recruitment documentation and draft offer and contract templates that withstand scrutiny. A brief review now is considerably cheaper than a tribunal claim later.
