Employers and recruiters should note the recent decision of the High Court in Genockey v Bank of Ireland [2017] IEHC 498 as a good example of how clear employment pre-conditions can be of crucial importance to employers when defending claims arising from withdrawals of offers of employment.

Withdrawing an offer of employment can be fraught with risks, particularly where an employer’s obligations under the Employment Equality Acts are triggered. Most employers will be familiar with their obligations under the Employment Equality Acts when recruiting employees, and will take care to ensure that the Acts are complied with. Employers will be aware that candidates will have a claim against them if an offer of employment is withdrawn for reasons relating to any of the nine protected grounds under the Acts.

However, the risks associated with the withdrawal of offers of employment are not confined to the Employment Equality Act. In the Genockey case, Bank of Ireland was faced with High Court proceedings brought by a candidate claiming damages for negligent misrepresentation arising from the withdrawal of an offer of employment to her. The offer of employment was withdrawn due to the candidate’s non-compliance with a pre-condition concerning the verification of her qualifications. The Bank successfully defended the claim as the pre-conditions for the role in question were made clear to all candidates, including the plaintiff, at all stages of the recruitment process.

Negligent misstatement

Over the past 15 years or so, there have been a number of High Court cases in which negligent misstatement has been examined in the context of employment offers. In Carey v Independent Newspapers, the plaintiff employee had negotiated certain working conditions (working from home on mornings) with the defendant, and had handed in her notice to her (then) current employer on that basis. This term had not been complied with in circumstances where, unknown to the plaintiff, it had been offered to the plaintiff without senior management approval. In this case, the High Court found that it was a fundamental term of the employee’s contract that she would not have to work mornings. The Court found that the plaintiff had relied on the employer’s misrepresentation and acted to her detriment, as she would not have taken up employment with the defendant unless she could work out of the office during the agreed times.

In Forshall & Fine Arts & Collections Limited v Walsh, Shanley J in the High Court stated that

‘a party seeking damages for negligent misrepresentation must establish that the representor failed to exercise due care in making the representation as a result of which representation the person to whom it was made was induced to enter into the particular agreement and suffered damage in consequence of the inaccurate representation.’

In King v Aer Lingus Plc, the High Court held that there is a duty of care to avoid making negligent representations or statements in pre-contractual negotiation stages, which will have the effect of inducing a person to act to their detriment by leaving a previous position.

The Genockey case

The Plaintiff in the Genockey case had applied for an administrative position in the Bank. She stated, mistakenly, that her leaving certificate results included 3 honours and 4 passes. In reality, the plaintiff had received 4 passes and 3 fails in pass level subjects, though the Court was of the view that she had overstated her results unwittingly.

The plaintiff was invited to an interview for the position of Loan Administrator, and she was asked to bring a completed and signed job application form, and original proof of qualifications. While the Plaintiff did not bring a copy of her qualifications to the interview, she did submit a completed and signed copy of the application form, which stated that ‘any offer of employment is subject to verification of educational qualifications, proof of identification […]. Any deliberate misrepresentation or omission could result in the withdrawal of any offer of employment (if successful), or in dismissal should employment have commenced.’

Subsequently, on 2 October 2013, the Plaintiff received a telephone call informing her that she had been successful at interview and that she was being offered a job. While the Plaintiff contended that this was an unconditional offer, the Bank’s evidence was that the offer was subject to successful completion of pre-employment checks. The Plaintiff informed the Bank that she would give her (then) current employer two weeks notice and a start-date was agreed. Following this telephone call, the Bank sent an offer letter to the plaintiff, and again this stated that the offer of employment was subject to completion of pre-employment checks, including verification of education qualifications.

The Plaintiff submitted her leaving certificate results to the Bank, and shortly afterwards, she received a call informing her that the Bank could no longer offer her the position of Loan Administrator in circumstances where she had failed Maths in her leaving certificate.

The Plaintiff sought damages for, amongst other things, breach of contract and misrepresentation. She alleged that the Bank had represented to her that she was receiving an unconditional offer of employment when she was phoned on 2 October 2013 and ‘effectively advised to hand in her notice in her existing job’, with a view to taking up employment with the Bank.

In the High Court, Eager J found that the plaintiff had not established that the defendant had failed to exercise a duty of care in making a representation to the plaintiff, on which she acted to her detriment. He found that at all stages of the hiring process (ie on the application form signed by the Plaintiff; at the interview stage; when the Plaintiff was offered the job by telephone on 2 October 2013, and when the plaintiff was sent a written offer), it was made clear that the job offer was conditional upon the plaintiff meeting certain requirements. In these circumstances, Court concluded that it could not find in favour of the plaintiff, and her claim for damages failed.

The decision in Genockey shows how a well designed recruitment process, where any employment pre-conditions are made clear to candidates at each stage of the process, can help employers mitigate the risk of legal claims arising from the hiring process.

Recruiters, take note.