How can employers protect themselves when candidates embellish or fabricate their CVs?
In difficult economic times, job applicants may try to gain a competitive edge by embellishing their achievements or omitting potentially damaging information from their CVs. By inflating exam grades or fabricating work experience, applicants not only risk embarrassment but may commit a criminal offence under the Fraud Act 2006. Recently CIFAS, the UK’s fraud prevention service, issued a warning that students may face imprisonment for lying on their CVs.
Even if a candidate’s embellishments do not constitute actual fraud, inaccurate information may result in poor hiring decisions. What can employers do if they discover an applicant or employee has lied?
Job offers
If a lie is uncovered before an employee has accepted a job, the offer of employment can be withdrawn. However, the employer should be prepared for disappointed applicants to allege the employer's reason was unlawful (for example, that it was an act of discrimination). Employers should document their reasons for withdrawing a job offer and retain this evidence to support the decision.
Dismissal
An employee lying to their employer will usually go ‘to the root’ of the employment contract, undermining the employer’s trust and confidence in the employee, entitling the employer to dismiss the individual. Often a lie will be discovered during the employee’s probationary period, during which the employer is entitled to dismiss on a shorter notice period. A serious lie or omission may justify a summary (without notice) dismissal. However, every case depends on its facts. A trivial ‘white lie’ may not bring the contract ‘crashing down’. Particular care is needed if the employee has sufficient qualifying service to bring an unfair dismissal claim (currently two years). It may be outside the band of reasonable responses for an employer to dismiss for breach of trust and confidence where employees have shown themselves to be trustworthy and competent in a role, particularly over a long period.
Employers have to ask themselves whether the lie goes to the heart of the individual’s suitability or integrity, actively mislead them, or caused a breakdown in trust. They may choose to overlook a single or minor incidence of dishonesty by a valued employee or a strong job candidate. In the recent case of Bouabdillah v Commerzbank an applicant withheld the fact that she had brought tribunal proceedings against a previous employer. An employment tribunal found that the subsequent decision to dismiss her was ‘emotionally driven’, unfair and constituted victimisation.
Criminal records
A robust employment contract will usually state the employee has an ongoing obligation to disclose any criminal convictions and an offer of employment will usually be conditional on a satisfactory criminal records’ check being received.
If employees have lied about their criminal record (and they were not entitled to withhold this information under the Rehabilitation of Offenders 1974), dismissal is likely to be reasonable. In some regulated sectors it may be unavoidable.
Health
Employers should proceed with caution where job applicants or employees have withheld information relating to their health, even if their condition affects their ability to perform their role. There is no legal obligation on an employee to disclose a disability during the recruitment process and dismissing an employee when that disability comes to light is likely to be discriminatory. If candidates have to complete an application form or questionnaire, employers should consider whether the questions were clear and unequivocal, and whether a candidate has truly been dishonest or simply dodged the issue.
Contract claim
In theory an employer can pursue a job candidate or employee in the civil courts for fraudulent or negligent ‘misrepresentation’ where the company has relied on false information or documents. The employer must demonstrate actual financial loss, which could include the costs of recruitment and training, but such actions are complex and expensive and, as such, relatively rare.
Good practice
Prevention is better than cure. Robust recruitment practices, such as following up references and incisive questioning at interview, have never been more important. If employers suspect an applicant has been dishonest, they should go the extra mile before making an offer and investigate that gap in employment history or request copy certificates from the candidate or their education provider. Extra legwork early on can head off a claim later.
Stuart Jones is head of employment and pensions at national law firm Weightmans
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