As human resources professionals, securing talent before the employment contract is even signed is a major challenge. A well-written promise to hire can guarantee this commitment. However, it must be used with care as it commits both the employer and the candidate. Since the 2017 reform, the distinction between an offer and a unilateral promise to hire has been clarified by case law, profoundly changing the way you must manage these commitments. A promise to hire no longer automatically constitutes a contract of employment. This legal change needs to be properly understood to avoid any unjustified retraction or termination, which could lead to damages and even legal action before the industrial tribunals.
What is a promise to hire?
A promise to hire is a formal offer made by an employer to a candidate for a specific position. It mentions essential elements such as remuneration, the starting date and the duration of the contract (permanent or fixed-term). However, not all promises of employment are created equal. Offer of an employment contract: This is simply a contract proposal made by the employer to the candidate. As long as the offer has not been accepted, it can be withdrawn without consequence. However, if the offer is withdrawn after acceptance, the employer may be liable to pay compensation for the loss suffered. Unilateral promise of an employment contract: In this case, the employer makes a firm commitment to take on the applicant. As soon as the candidate accepts the proposal, the contract is formed. If the employer withdraws after acceptance, this may be treated as a dismissal without real cause and give rise to damages.
Why is this important? For recruiters, this distinction allows you to better manage candidates' expectations while limiting the risk of disputes. The wrong wording can have serious legal consequences for the company.
Legal value of a promise to hire: What is it really worth?
The legal value of a promise to hire depends on the type of commitment made by the employer. An offer of a contract does not have the same value as a unilateral promise. You therefore need to know exactly what you are promising, because the consequences of breaking it are different.
1) Offer of an employment contract: An offer does not have the same value as an employment contract. The employer may retract the offer as long as it has not been accepted by the candidate. However, withdrawal after acceptance may result in damages if the candidate proves that he has suffered prejudice. For example, if they resigned from their previous job on the basis of your promise.
2) Unilateral promise of an employment contract: This promise is binding on the employer as soon as it is accepted by the candidate. If you renege on your commitment after acceptance, this is treated as dismissal without real cause and may result in significant legal penalties. It is therefore impossible to withdraw without following the standard dismissal procedure.
How do you write a solid promise to hire?
To avoid pitfalls, it is essential to draft your promise to hire properly. Here are a few tips to ensure that your document has legal force:
- Position offered : Clearly describe the responsibilities of the position.
- Starting date: Be precise to avoid any confusion.
- Remuneration: Indicate the full remuneration (gross salary, any bonuses).
- Duration of contract: Specify whether it is a permanent or fixed-term contract.
- Notice clause: In the event of withdrawal or termination, state the terms of termination.
- These points must be included in your promise for it to be legally valid. Make sure you specify whether it is an offer or a unilateral promise. Incorrect wording may result in the agreement being reclassified as a dismissal or in damages being awarded.
3 mistakes to avoid with a promise of employment
Here are the most common mistakes you should avoid:
1. Failure to include essential information: If you fail to specify remuneration, start date or job title, your promise may be considered null and void.
2. Verbal promises: A verbal promise, although acceptable in law, is difficult to prove in the event of a dispute. Always prefer a formal letter or document signed by both parties.
3. Unclear offer: A poorly drafted or incomplete offer can be contested by the candidate in the event of withdrawal or refusal.
Legal remedies in the event of retraction or non-compliance with the promise to hire
In the event of retraction or non-compliance with the promise to hire, here are the options available to you and the candidate:
For the employee: If you withdraw a unilateral promise of employment after acceptance, the candidate can take the matter to the industrial tribunal to obtain compensation for dismissal without real cause. They can also claim damages for loss suffered, for example if they have left another job or incurred expenses for their future position.
For the employer: As long as the offer has not been accepted, you are free to withdraw. But if you do so after acceptance, you incur legal liability and may have to pay compensation to the injured candidate.
Practical advice for recruiters: When and how should a promise to hire be used?
The strategic use of the promise to hire in your recruitment process can help you attract and secure talent.
When should you issue it? Issue the promise once you are sure you want to hire the candidate, but before the final contract is signed.
How do you make it engaging? Add elements that go beyond a simple legal commitment, such as an integration plan or a development path model. This increases the candidate's confidence and reduces the risk of withdrawal.
The promise to hire, a tool to be handled with care
The promise to hire is a powerful tool, but it must be drafted with care. Poor management of this commitment can have serious consequences for your company. Take the time to understand the differences between an offer and a unilateral promise to avoid disputes. Need a solid model? Download our optimised promise to hire template to guarantee total legal certainty and boost your recruitment now!
