Recent statistics on job applicants lying on their CV, suggest that a third of British job applicants have done it once, and a quarter do it regularly, with men being the worst offenders. This might be glossing over a period of unemployment by not specifying the finish and subsequent start dates on jobs, through to falsifying experience or qualifications. The latter can be prosecuted as fraud and, in 2022, the Supreme Court ruled that a former NHS chief executive had to pay back some of the salary he had earned. This followed on from him being jailed for lying about his PhD and prior career experience.
In Easton v Secretary of State for the Home Department (Border Force) the question for the Employment Appeal Tribunal ("EAT") was whether the employment tribunal had been entitled to conclude that the respondent had reasonable grounds to believe that the claimant's decision, to hide his previous dismissal for gross misconduct, had been taken dishonestly.
The facts
The claimant was a career civil servant, having worked for several government departments since 1992. In June 2016 he was dismissed for gross misconduct from a position with the Home Office. The claimant brought an unfair dismissal claim at that time, which was initially defended by the Home Office, but ultimately settled via an Acas COT3 settlement, pursuant to which the Home Office made no admission of liability. The claimant had started a new role with the Department for Work and Pensions in September 2016.
In 2019, he applied for a role with the Border Force (part of the Home Office), went through an interview process and security vetting, and was appointed to the post. He did not disclose on the application form that he had previously been dismissed for gross misconduct, or that there had been a gap in his employment between June and September 2016. However, in 2020, the claimant encountered one of his former line managers at the Home Office who advised his new line management of the earlier dismissal. An investigation was undertaken into allegations that he failed to disclose material details on his application for the role with Border Force which encompassed his failure to admit (1) the earlier dismissal; and (2) that he had a serious underlying medical condition that would potentially impact on his ability to carry out the new role. Following a disciplinary hearing he was dismissed for gross misconduct on the basis he had been dishonest in his application for the role.
Employment tribunal claim
A number of claims were brought before the employment tribunal, some of which were withdrawn, and the rest were unsuccessful. As regards the unfair dismissal claim, the claimant's own evidence was that he understood that any dismissals and periods of unemployment in the previous three years would be "relevant and material information that the Home Office would require from him" when applying for a role. The employment tribunal did not accept the claimant's evidence that he had raised his dismissal and the gap in his employment in his interview for the new role. The claimant had also ticked a box on the application form confirming that he understood he may be disciplined if he gave false information or withheld relevant details. The employment tribunal concluded that the dismissal had been fair in the circumstances.
EAT judgment
The EAT upheld the employment tribunal decision. The basis of the appeal was that the application form had not included any direction on what should be included in response to the question about employment history, and as both roles were with the Home Office they would have known about the earlier dismissal.
The EAT held that it should not be assumed that an organisation the size of the Home Office had a collective corporate memory. Additionally, even if the Home Office was aware, that did not take away from the claimant's obligation to tell the truth in his application form. There was nothing ambiguous about being asked to provide employment history - it is information "of a kind that is routinely sought in job applications, the reason for which are well known and obvious".
What can employers take from this?
Employers will take some comfort from the outcome of this case albeit cases such as this will turn on their own facts. Of particular importance in circumstances where an employer decides an employee is acting dishonestly rather than, for example, incompetently or naively will be the reasonableness of the investigation undertaken to support that conclusion. The information that has been omitted will also be of significance. If there had been a gap in employment for reasons other than a gross misconduct dismissal, the employer may well not have seen that as causing any particular difficulty, or, if it had, dismissal may not have been an appropriate sanction. Having a good paper trail, which demonstrates the procedure followed and the thought process in coming to the decision to dismiss, will assist in demonstrating the fairness of the dismissal.
