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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 45391
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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My Grand daughter at University has signed a conditional job

Resolved Question:

My Grand daughter at University has signed a conditional job contract offer based on receipt of satisfactory references - since signing the contract she has not heard anything further from the company and is unaware whether all those who have been requested references have responded. As she has not heard further from the company for several weeks does an enforceable contract exist?
Is it fact, where the contract provides one party with the right to cancel, there might be no consideration because of lack of mutuality of obligation. If there is an absolute and unlimited right to cancel the obligation, the promise by the party with the right of cancellation is illusory, and the lack of consideration means that there is no contract.
Is it also fact that a fundamental concept of contract law is that a contract that is signed by both “sides,” but that neither “side” has begun to “perform,” is not enforceable, and thus voidable by either “side.”
My niece believes in the next days she will be offered a much better suited opportunity from an organisation where she feels her best values and the company's values mesh and if legally free to accept would prefer to avail of the opportunity.
I would welcome your view, comments, suggestions and in particular her legal standing for which my many thanks in anticipation.
Regards
Ronnie
Submitted: 1 year ago.
Category: Law
Expert:  Ben Jones replied 1 year ago.
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today.

Customer:

Morning Ben - over to you

Ben Jones :

So to clarify you want to know whether she is in a position to cancel the contract if a better offer comes her way?

Customer:

Yes but also whether a contact actually exists following the signing of her conditional offer

Ben Jones :

ok let me get my response ready please - you may get a message abut a timer expiring but just ignore that

Customer:

OK - would like to know why?

Ben Jones :

why what?

Customer:

Can you please give me your considered views and legal advice to my email address which is *****@******.*** - I had a message that said 'Ben Jones has stepped out of this chat and that's why I replied - leave you to get back to me at my email address once you have concluded your findings - I have to now step out of this chat

Ben Jones :

ok we cannot email customers but I will respond on here shortly so just get back to this page whenever you want

Customer:

Over to you

Ben Jones :

Yes a contract would be in place, regardless of whether the employer has gone back to her once she had accepted the offer. There would still be a mutuality of obligation – the employer is obliged to offer the role subject to the satisfaction of the conditions, and the employee is obliged to take up the role as offered. There was obviously an offer and an acceptance and the consideration is that the employer has made the promise to offer her the job on satisfaction of the conditions. So a legally binding contract would be in place, albeit it would be conditional on satisfaction on the conditions, in this case successful references.

This is not a case of an illusory promise – this would not apply here. So the issue now is what would happen if either of the parties cancels this contract. The employer can only withdraw the offer if they do not get the necessary satisfactory references, or even if the job starts they could the issue the employee with the contractual notice period to terminate the contract.

The employee could withdraw from the contract before t start but they would technically be in breach of contract. Saying that, employers very rarely pursue such claims and they would need to show that they have suffered actual losses as a result of that breach. For example we are talking about recruitment costs, if they have had to pay an agency to recruit the employee, or if they have to get a replacement on short notice any fees expended in doing so. The employer would need to show that losses have actually been incurred and they cannot just issue a financial penalty to punish the employee for walking away from the contract. But as mentioned such claims are very rarely made, mainly because the potential compensation is relatively low (or cannot be justified at all) and because the employer would often rather concentrate on getting someone else for the job and move on rather than get involved in a legal battle with someone who was obviously not suitable for their business in the first place.

To mitigate any potential losses she may cause the employer she should give as much notice as possible before the start of the contract so that the employer has ample time to reduce its own losses and maybe find a replacement in good time and without too many additional costs. It is not uncommon for someone to walk away from a contract before its start – but it is rare for an employer to take the matter further. There are of course always going to be risks attached to taking such decisions but they are relatively low in these circumstances.

Ben Jones :

I hope this clarifies your position? If you could please quickly let me know that would be great, as it is important for us to keep track of customer satisfaction. Thank you

Customer:

No contract of employment exists until a candidate has accepted an offer and all conditions under which the offer was made have been satisfied..

As the job offer was subject to conditions, the employer needed to take up references or required my grand daughter to have a medical, and if these were unsatisfactory, she would not be able to make a claim against the employer for any compensation. This is because there was never any contract of employment. There was only a conditional offer of a job and the conditions have not been met. This is exactly the same sceanrio here

Is it also not the case that a fundamental concept of contract law is that a contract that is signed by both “sides,” but that neither “side” has begun to “perform,” is not enforceable, and thus voidable by either “side.”

As I understand matters to be among lawyers and Judges, the phrase used for such a contract is “executory contract,” and as most legal doctrines are, it is derived from common sense. The idea is “No harm, No foul.” If neither “side” has started to fulfil his or her promise to the other, then nothing is lost if the two sides just “walk away” from the intended relation.

Customer:

did not mean to send as I am still typing

Customer:

we have no confirmation from the employer that the references are satisfactory and until that has been confirmed all conditions from both sides have not been met

Ben Jones :

a conditional contract is still legally binding but the terms under it are 'suspended' until the conditions are satisfied - so it does not mean that there is no contract yet, there is and it is legally binding on both parties, but the parties cannot rely on the terms of that contract until the conditions have been satisfied. So the employer cannot just retract the job offer now saying that the references have not yet been supplied and as such no contract exists - a contract still exists and they would be in breach even if references had not yet been provided. You also cannot argue that if neither side has not yet begun to perform its side of the contract that it is voidable - many contracts are entered for future performance - that still makes them binding, you cannot expect immediate performance so that it is made legally enforceable there and then. What I am saying is that the employer could have already incurred expenses in the recruitment process so if she walks way now they would have still incurred losses so they could potentially claim.

Customer:

Sorry I cannot accept that unless and until such time as "ALL"conditions have been met there is an enforceable contract - employer has the option to withdraw so both sides have yet to reach an enforceable agreement - you yourself have said So a legally binding contract would be in place, albeit it would be conditional on satisfaction on the conditions, in this case successful references.

Ben Jones :

no you misunderstood - a binding contract would be in place and the parties would still be bound by it and proceedings with it and allow the conditions to be met, i.e. work towards ensuring that the conditions are met - the terms of the contract are suspended until this happens but the actual contractual obligations are still there. If either party withdraws before the conditions are met then there is still a potential breach because they have not met the agreement to try and meet the conditions. But you are getting too involved in the technicalities of contract law when this is rather unnecessary here - In all my years in law have never been involved in or known of a situation where a employer has sued an employee who has walked away from such a position - it is extremely rare

Customer:

I have been in business for many years and it is that experience I am bringing to bear - I have not in fact even at this stage seen my grand daughters contract and

If the agreement stipulates a Start Date and Time, then she is not technically employed by the Company until she presents herself for work at the specified location at that date and time. So, regardless of whether the contracts have been signed, she is not actually employed with the company until that moment. I am fully aware the employer could file a lawsuit against her, but in all probability won't. After all, it doesn't want to keep an employee who doesn't want to be there and it doesn't want a reputation for suing its own workers. - However that said until all the terms have been met in full - whether suspended or otherwise there cannot be an enforceable contract - do you accept that if the employer receivers unacceptable references or an unsatisfactory medical report then they are at liberty to withdraw - so no contract - nothing to enforce

Ben Jones :

yes if the references are not met then they can withdraw the contract but that would be because the conditions they have stipulated have not been met so they would bear the losses resulting from that. However, until the conditions have been satisfied there is still a binding contract - as mentioned the employer cannot just retract the offer just because they have not received the references - they would be in breach of contract if they did so and the employer could challenge them over that. Had they withdrawn the offer once the condition has not been satisfied, i.e. the references were received and they were unsatisfactory then there is no problem, but before the references have even come in - then that would be a breach still. Similarly, if the employee withdraws before the conditions have had a chance to be satisfied, there is still a breach of contract

Customer:

I think we now both agree - the agreement is in favour of the Employer and on receipt of references which they consider unsatisfactory they are at liberty to withdraw - as several days have elapsed - if not a week or two since she signed the contract and since she has not heard from the employer she is unaware whether they feel the references received or medical report received is satisfactory or otherwise - in law one must not presume anything and without a waiver from the Employer to confirm all is OK - not all conditions have been successfully met - and thus the conditional contract is not currently enforceable - Employer has had time to obtain the references requested but my grand daughter does not know what was said in those references and met with satisfaction by the Employer - she can not hang on indefinitely to wait for confirmation and if a more suitable offer comes her way I believe she should take it in the knowledge she has not reneged

Ben Jones :

she cannot assume that just because the employer has not been in contact the condition has not been satisfied, especially as there was no specified timeframe for this. It could be that the employer is still waiting on the references to arrive - that is not their fault and they are still trying to comply with the conditions but are being delayed by the referees, that does not mean they have failed in their part and that the contract can be cancelled as a result. So until she has been advised that the conditions have been met she will still be at risk if she withdraws, but she can of course always ask for mutual consent to cancel the contract and that would release both sides from their obligations

Customer:

OK - she cannot assume that just because the employer has not been in contact the condition has not been satisfied, - nor by the same token can she assume tall conditions have been met and contract then becomes enforceable - We going round in circles now - Thank you for comments

Ben Jones :

yes hence why she needs some confirmation by the employer either way before she makes any assumptions

Ben Jones :

and she is free to contact them at any time to request that

Customer:

Understood over and out

Ben Jones :

you are welcome, all the best

Customer:

Bye

Ben Jones :

Goodbye

Customer:

Ben I am unable to give you a rating as all faces are greyed out - be that as it may I am happy for you to collect the initial fee agreed - trust this satisfactory

Ben Jones :

thank you and sorry, there is sometimes a slight delay in getting these to work.

Customer:

If you happen to see this Ben - I now have sight of the conditional offer - dated 16th Feb - and it very specifically states “Upon satisfactory completion of all pre-employment checks,you will be issued with an offer of employment and accompanying statement of terms and conditions of employment” - so no enforceable contract currently in place as no offer of employment made following the Feb conditional offer

Ben Jones :

Hi, ok if it specifically states that no offer has yet been made then your argument would be stronger

Ben Jones :

Obviously I wasn't aware of this initially, my assumption was that the offer of employment was made conditional on the satisfactory checks

Customer:

Thanks Ben - only hope the offer she craving for will come forth

Ben Jones :

Hope so too!

Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 45391
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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