Making a formal offer of employment

Ideally, the initial job offer should be made verbally and then followed up with a formal offer of employment. The contents of a written formal offer of employment should include:

• the job title/role

• starting salary

• probationary period (if applicable)  

• agreed start date

• what action the candidate has to take.

The offer should be made subject to satisfactory references, security checks if required and – if there is a function intrinsic to the role that requires this – a medical test. Medical questions can be asked once the offer is accepted in order for reasonable adjustments to be made where appropriate.

An alternative to the formal offer subject to conditions is to issue a written conditional offer of employment and follow it up with a written final offer of employment once the conditions have been met.

The appointment letter can be accompanied by further information about the organisation, its mission, vision, values and culture. It can also include background information on current work to help prepare the individual for his/her new role together with a team chart. If the formal induction includes a course, new employees can be given the information there.

Along with providing information in writing, some organisations operate a buddy scheme where the prospective employee is teamed up with an existing employee. Depending on how the scheme is organised the two may be able to meet or telephone each other and will almost certainly exchange question and answer emails.

Other details to send the employee, either with the formal offer of employment or before they start, include:

• when, where and to whom they should report on their first day, this should include details such as parking, which entrance to use (if necessary) and who to call if there are problems; it’s often useful to ask them to arrive slightly later so their line manager has time to prepare for their arrival

• the first day may include specific induction activities, e.g. health and safety, so it’s worth sending the new employee a schedule of the day’s activities

• check with the employee before arrival how he or she likes to be addressed and whether they have any letters after their name, so that business cards, name plates and email signatures can be set up correctly.

• If the organisation’s website has a space where new employees can ask questions before they arrive, make sure those questions are answered by a relevant person.

Gardening leave

When a senior employee is recruited their previous employer will often impose and enforce ‘gardening leave’. Gardening leave is a period of notice that is served away from the office and the key element for a new employer is that it prevents the employee from taking up their new duties early. The courts have ruled that gardening leave can only be applied if it is a specific clause in the employee’s contract and where it is reasonable to do so – it must not restrict trade. In practice, to enforce gardening leave an employer will need to have a number of clauses in the employee’s contract from the start of employment (not just when notice is given). These include provisions that:

• specify that an employer does not have to provide an employee with work

• give the employer the right to exclude the employee from the workplace

• prohibit the employee from contacting customers or clients

• prohibit the employee from undertaking work for another employer while on gardening leave

• indicate how any loss of bonuses or commission will be compensated

• require company equipment to be returned.

In addition to the above, when exchanging letters with the employee at the time of giving their notice, the employer must be clear they are relying on gardening leave – otherwise it is possible the letter can overrule the terms of the contract.

So the question of whether the employee can work for you during their gardening leave period will very much depend on the terms of their previous contract.

Assuming the contract is enforceable they would not be able to work in your offices – while their previous employer is still paying them they should be available to work for them if required. However, gardening leave is an expensive option so if you need your new employee to start working for you quickly and you are not in direct competition with their previous employer it may be possible for the employee to ask for a waiver of the gardening leave provisions. You should not encourage the employee to break their contract – it sends the wrong signal to the new employee!