Contractors' Questions: What if the role I netted is on offer internally?

Contractor’s Question: If I have been offered a role by a recruitment agency on behalf of a client but now, following a chase, I am told that the role is being considered internally, what is my position, in both practical and legal terms?

Expert’s Answer: There is nothing wrong with advertising a position both internally and externally, as employers will naturally want to hire the best person possible for a given role. The verbal offer is your starting point, although it can be implied that any such offer was subject to contract, given that the verbal confirmation is unlikely to have incorporated all of the relevant terms of employment.

With regards to the withdrawal of the offer, you could only really challenge this if all of the conditions to which the offer was subject had been satisfied. Given that the offer was likely subject to a contract being signed, you are unlikely to succeed on this point. Even if the conditions were satisfied and a contract did exist, any losses are deemed to accrue only after the start date. So for example, if you had a four-week notice period, but the offer was wrongfully terminated one week before you were due to start work, damages would normally be limited to three weeks' earnings. Unfair dismissal is also unavailable as the basis for a claim, given that you do not satisfy the continuous employment requirement.

The situation would be very different if you could show discrimination in the decision not to offer you employment (sections 39(1)(c) and 39(3)(c) of the Equality Act 2010). Under these circumstances, you could bring a claim against the employer, as well as any employee or recruitment agency if they could be shown to be involved in discriminatory behaviour. This is, however, a massive hurdle to overcome, particularly since you have no access to the decision-making process. In any event, it’s highly unlikely that evidence of discrimination would be recorded in writing if it existed.

As sad as I am to say this, my best advice would be to chalk this up to experience and walk away; any outcome would be disproportionate to the time, effort and expense of pursuing this unless you have evidence of serious wrongdoing beyond mere administrative incompetence.

The expert was Aasim Durrani, solicitor at Lawdit Solicitors, a legal advisory specialising in intellectual property, internet and IT law.

Editor’s Note: Further Reading –

Contractors’ Questions: Verbal extension retracted – do I have any rights?

Beating the IT Contract Crunch ii) broken promises

Contractors’ Questions: Did I have an oral contract?

Monday 8th September 2014