A recent analysis suggests that this problem may be more widespread than many would expect. The Risk Advisory Group found that 70% of CVs in their sample contained some form of inaccuracy, and 28% of candidates had, wittingly or unwittingly, misled their prospective employer about their educational qualifications or employment history.

The stakes are high for employers. The repercussions, in terms of cost, time and reputation of making the wrong hire and of potentially running the recruitment process again can be significant.

So what are the options for employers in these circumstances, and what can they do to protect against this risk?

Preventative steps: pre-employment checks and making an offer subject to conditions

Irrespective of whether there are concerns over deception or not, employers should complete appropriate pre-employment checks and ensure that offers of employment are clearly expressed as subject to conditions. Conducting competency based tests at interview can also be an effective means of uncovering inaccuracies in an applicant’s credentials.

A pro-active approach at this stage may flush out potential issues. In contrast, if the fabrication is discovered later (and particularly once the individual has accrued two years’ service), the issues become more complex and the implications may be more costly for the employer.

Conditions to which an offer may be subject often include conditions such as:

  • confirmation that the applicant has the right to work in the UK;
  • receipt of references which are satisfactory to the employer;
  • receipt of evidence of any qualifications that the applicant claims to hold;
  • receipt of any background checks required professionally or due to the nature of the position
  • obtaining any qualifications specifically required for the position and/or approval from a particular registered authority;
  • receipt of a medical questionnaire which is satisfactory to the employer (employers will also need to ensure they comply with the restrictions on pre-employment health questions);
  • agreeing to enter into a confidentiality agreement;
  • holding a valid (and clean) driving licence;
  • receipt of the applicant’s current employment terms (and/or confirmation that the applicant is free from any restrictions from their previous employment that would prevent them from starting the new position);
  • if appropriate, a Disclosure and Barring Service check.

Withdrawing an offer

If an applicant fails to meet any of the conditions to which the offer is subject (for example, proof of qualifications) or new information comes to light about the applicant which calls into question their suitability for the role, the employer may want to withdraw an offer.

Before withdrawing an offer, employers should document, in detail, their reasons for doing so, and support these reasons with evidence. Employers must take care to ensure that their reasons for withdrawing the offer are not unlawful or discriminatory. Although applicants will not have accrued two years’ service, in some circumstances employees do not need any qualifying service to bring an unfair dismissal claim, and both applicants and employees can bring a discrimination claim regardless of length of service.

Employers will need to seek advice as to whether, in the particular circumstances, the offer can be withdrawn without notice or whether this must be done in accordance with notice provisions in the employment contract. This will depend on whether it can be argued that the conditions (to which the offer was subject) have been satisfied and that the applicant has already accepted the offer.

Discovering inconsistences later on

Where employers discover the inaccuracy after the employee has started work, the position can be more complex. A fundamental element of any working relationship is the implied term of mutual trust and confidence. Discovering that an employee has been inaccurate, or deliberately misled their employer on their CV certainly has the potential to undermine the trust and confidence and may also raise misconduct concerns. For employers in regulated sectors, a regulatory investigation may also be necessary.

However, the consequences must depend on (and be proportionate to) the nature of the inaccuracy, and the extent of the deception. For example, there is clearly a difference between, on the one hand, an employee who exaggerates the extent of their involvement with a particular hobby and, on the other hand, an employee who had not obtained the necessary professional qualifications to undertake their role. A key question for the employer to consider is whether the inaccuracy is fundamental to the employee’s position and duties. Would this new knowledge have affected the employer’s original decision to offer the position to the applicant?

Taken at its very highest, dismissal without notice may be justifiable where any dishonesty is significant enough that it amounts to a fundamental breach by the employee, entitling the employer to treat the conduct as a breach of trust and confidence which brings the employment to an end.

In other circumstances, where the employer has conducted a proper investigation and disciplinary procedure (in accordance with the ACAS Code of Practice on Disciplinary and Grievance Procedures) dismissal on notice may be justifiable on the grounds of misconduct. In any particular case (even where the employee has less than two years’ service), employers should seek specific advice to ensure the appropriate steps and procedures are taken, and should bear in mind that the employee may have contractual claims for breach of contract in addition to claims for unfair dismissal (or discrimination) in the employment tribunal.


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Hannah Wright

Solicitor

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+44(0)2075517843

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h.wright@bwbllp.com
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Posted on 15/08/2016 in Legal Updates

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