Can a job offer be withdrawn? Omooba v Michael Garrett Associates

Recent case law shows that employers do not have unlimited freedom to pull a job offer. Here is what applicants should know about conditional offers, discrimination risks, reasonable adjustments, and the evidence worth keeping.

1. What counts as a “withdrawn offer”?

A job offer, once made, can create legal consequences – even before the first day of work. ACAS guidance makes clear that a contract can start as soon as an offer is accepted, even if that acceptance is only verbal. Whether an employer can lawfully pull the offer back depends on the type of offer and the conditions attached to it.

In Ngole v Touchstone Leeds [2026] EAT 29, the claimant – a qualified social worker – scored well at interview and was offered a discharge mental health support worker role on 19 May 2022, subject to satisfactory references. When the employer carried out a Google search after reference difficulties and discovered news stories about his earlier litigation with Sheffield University over Facebook posts expressing orthodox Christian views on homosexuality and same-sex marriage, it withdrew the conditional offer on 10 June 2022 without giving Mr Ngole any opportunity to respond.

The Employment Appeal Tribunal upheld the finding that this initial withdrawal was unlawful direct discrimination. The employer acted “precipitously and disproportionately” – echoing what the Court of Appeal had said about Sheffield University’s treatment of the same claimant years earlier (at [322]–[323]).

Key point for applicants: A conditional offer is still an offer. An employer cannot simply revoke it the moment it discovers something it dislikes without, at minimum, giving you an opportunity to respond.

2. Conditional vs unconditional offers

ACAS distinguishes between two types of job offer:

• Unconditional offers – once accepted, form a binding contract immediately. Withdrawing one without notice could be a breach of contract.
• Conditional offers – are subject to stated conditions (typically satisfactory references, DBS checks, right-to-work verification, or health clearance). The employer can withdraw the offer if a condition is genuinely not met.

In Ngole, the offer was conditional on satisfactory references. But the withdrawal was not based on the references failing; it was based on a Google search that uncovered the claimant’s publicly expressed religious beliefs. The EAT drew a clear distinction: the conditions attached to an offer define the legitimate scope for withdrawal — they do not give the employer carte blanche to revoke for any reason it pleases.

Key point for applicants: Read the conditions on your offer letter carefully. If the employer withdraws for a reason that has nothing to do with those conditions, that may signal a problem.

3. When withdrawal may be discrimination

The Equality Act 2010 framework

Section 39(1) of the Equality Act 2010 protects job applicants — not just employees. An employer must not discriminate:

• (a) in the arrangements it makes for deciding to whom to offer employment;
• (b) as to the terms on which it offers employment; or
• (c) by not offering employment.

This means discrimination law applies at every stage of recruitment: the advert, the shortlisting, the interview, the offer, and the decision to withdraw that offer.

What Ngole tells us about belief discrimination in recruitment

The EAT’s judgment, delivered by HHJ Tayler on 16 February 2026, is significant because it dissects, in granular detail, the different reasons an employer might have for withdrawing an offer – and holds that each reason must be analysed separately.

The employer in Ngole had broadly two clusters of reasons for its decisions:

Reason cluster	Nature	EAT’s view
Concern about how the claimant would do the job – would he actively support LGBTQI+ service users, attend training, work with partner organisations?	Related to the manifestation of belief in the workplace – potentially justifiable	The ET’s proportionality analysis on the second-interview requirement was upheld as lawful (at [102]–[106])
Concern that service users might Google the claimant and discover his beliefs – and be upset by them	Related to the holding of the belief itself – much harder to justify	The ET erred in law by failing to analyse whether this was separable from the protected belief. Remitted for fresh analysis (at [107]–[108], [115]–[116])

This distinction is critical. As the EAT put it:

“While I understand that there are many who find such views objectionable and deeply upsetting, those beliefs were accepted by the respondent to be protected religious beliefs. To the extent that the decision … was because of a concern that service users might have reacted badly merely to the fact that the claimant held the religious beliefs in question that would be treatment because of the belief and not capable of justification.” (at [108])

In other words: an employer cannot refuse to hire someone simply because other people might be upset to learn what that person believes. That is discrimination because of the belief itself — and direct discrimination because of religion or belief cannot be justified under the Equality Act (there is no justification defence for direct discrimination except in relation to age).

The EAT applied the framework from Higgs v Farmor’s School [2025] EWCA Civ 109, which is now the leading Court of Appeal authority on belief-manifestation discrimination. The Higgs framework, building on Page v NHS Trust Development Authority [2021] EWCA Civ 255, works as follows:

1. Identify the reason(s) for the treatment.
2. For each reason, ask:
   • Was it genuinely an objection to the manifestation of the belief, or to the holding of the belief itself? If the latter – unlawful, full stop.
   • If it was the manifestation, was there something objectionable or inappropriate in the way the belief was manifested? If not – cannot be justified.
   • If there was something objectionable, was the employer’s response prescribed by law and proportionate – applying the four-stage Bank Mellat test:
     1. Is the objective sufficiently important?
     2. Is the measure rationally connected to it?
     3. Could a less intrusive measure have been used?
     4. Does the severity of the impact outweigh the importance of the objective?

The burden of proving justification falls on the employer (at [77] of Higgs).

The EAT in Ngole set out a helpful structured checklist at paragraph 74 of the judgment, which practitioners and tribunals will likely adopt going forward.

How do you prove recruitment bias?

Proving discrimination at the hiring stage is notoriously difficult because the applicant rarely has full sight of the employer’s decision-making. In Royal Mail Group Ltd v Efobi [2021] UKSC 33, the Supreme Court – in a case about repeated unsuccessful job applications – clarified how the burden of proof works under s.136 of the Equality Act 2010:

• The applicant must first establish facts from which the tribunal could conclude that discrimination occurred (the “prima facie case”).
• The burden then shifts to the employer to prove a non-discriminatory explanation.
• The applicant does not have to prove discrimination on the balance of probabilities at stage one – but they must point to more than bare assertions.

Key point for applicants: You do not need a “smoking gun.” Inconsistencies in the employer’s story, unexplained departures from normal procedure, or a lack of credible explanation can be enough to shift the burden.

4. What employers can (and cannot) ask before offer stage

GOV.UK and ACAS guidance, underpinned by section 60 of the Equality Act 2010, restricts the health and disability questions an employer can ask before making a job offer. Before the offer stage, an employer may only ask health-related questions for limited purposes, such as:

• Determining whether the applicant can participate in the recruitment process itself
• Monitoring diversity
• Establishing whether the applicant can carry out a function intrinsic to the job
• Taking positive action

This means an employer generally cannot screen out disabled applicants with blanket health questionnaires before deciding whom to hire. After a conditional offer has been made, wider health questions may be asked – but any withdrawal based on the answers must still not be discriminatory, and reasonable adjustments must be considered for disabled applicants.

Social media and internet checks are not prohibited, but Ngole shows the legal minefield they create. The employer there carried out a Google search only because references were inadequate, and what it found – news coverage of a previous court case – led directly to a withdrawal that was (in part) found to be discriminatory.

Key point for applicants: If an employer withdraws an offer after a social media or internet check, ask yourself: is the real objection to something I did, or to something I believe? The answer determines whether the withdrawal is lawful.

5. A note of balance: not every unfairness Is unlawful

It is important to be realistic. Not every unfair-feeling recruitment experience falls under every employment protection.

In Sullivan v Isle of Wight Council [2025] EWCA Civ 379, the Court of Appeal confirmed that external job applicants generally do not get the same whistleblowing detriment protection as workers – even though Equality Act protections still apply. The Public Interest Disclosure Act 1998 framework protects “workers,” and an applicant who has not yet started work will not usually qualify.

Similarly, in Ngole itself, the EAT was careful to uphold the parts of the employer’s decision that were genuinely about job requirements rather than beliefs. An employer is entitled to:

• Set out role requirements in a job description and person specification
• Require employees to comply with equality and anti-discrimination policies
• Expect staff to work constructively with all service users, including LGBTQI+ individuals
• Require attendance at mandatory training

What it cannot do is punish someone for the mere fact that they hold a protected belief – even one that many people, including the employer, find deeply objectionable.

As Underhill LJ put it in Higgs (at [175]):

“The dismissal of an employee merely because they have expressed a religious or other protected belief to which the employer, or a third party with whom it wishes to protect its reputation, objects will constitute unlawful direct discrimination.”

6. Practical steps: what to do if your job offer is withdrawn

If you find yourself in Mr Ngole’s position – an offer made and then pulled – here is what to do:

📋 Immediate steps

Action	Why it matters
Keep every email, letter and text message	The withdrawal email in Ngole (10 June 2022) was central evidence. So was every subsequent exchange.
Note the conditions on the original offer	If the withdrawal is for a reason unconnected to those conditions, that is a red flag.
Ask, in writing, why the offer was withdrawn	The employer’s stated reason is the starting point for any later claim. In Ngole, the employer’s own letters revealed the discriminatory reasoning.
Note what changed between offer and withdrawal	In Ngole, nothing changed except the Google search. That sequence was telling.
Do not assume you must “prove your innocence”	The EAT rejected the idea that the burden shifts to the applicant to prove they won’t discriminate (at [106]). The burden of justification is on the employer.

📞 Getting advice

• Contact ACAS (the Advisory, Conciliation and Arbitration Service) – they offer free, impartial advice and run an early conciliation process that must be completed before most Employment Tribunal claims.
• Take legal advice promptly – the time limit for an Employment Tribunal claim is generally three months minus one day from the act complained of (extended by early conciliation). Missing it can be fatal to your claim.
• Consider whether the Equality Act applies – the protections in s.39(1) cover applicants, not just employees. You do not need to have started work.

Key takeaways

1. A conditional job offer is not a blank cheque. The employer can withdraw if a stated condition is genuinely unmet – but not for unrelated reasons that amount to discrimination.
2. Employers must distinguish between belief and behaviour. Ngole confirms that withdrawing an offer because service users might discover an applicant holds a protected belief is, at least potentially, direct discrimination because of the belief itself – and direct belief discrimination has no justification defence.
3. Each reason for a withdrawal must be analysed separately. The EAT’s structured checklist (at [74]) requires tribunals to identify every reason, assess whether each is about the belief or its manifestation, and – only for manifestation reasons – apply the Bank Mellat proportionality test.
4. Social media checks are a legal minefield for employers. The Ngole saga – spanning the High Court, Court of Appeal, Employment Tribunal and now EAT – shows how easily a Google search can lead an employer from legitimate due diligence into unlawful discrimination.
5. The burden of proof matters. Per Efobi, applicants need to establish a prima facie case — but once they do, the employer must prove a non-discriminatory explanation. And per Higgs, the burden of proving that treatment of a belief-manifestation was justified falls squarely on the employer.
6. Keep your records. Mr Ngole challenged the withdrawal immediately and in writing. Those contemporaneous exchanges – and the employer’s own revealing correspondence – were decisive evidence.

Judgment was handed down on 16 February 2026 by His Honour Judge James Tayler. The EAT allowed the appeal in part, holding that the Employment Tribunal had erred in its analysis of certain elements of the direct discrimination because of religious belief complaints. The case was remitted to the Employment Tribunal for further analysis, including full reconsideration of the complaint concerning the decision not to reinstate the job offer. The proceedings were therefore not finally determined by the EAT judgment.

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