What steps can employers take if they think an employee has fabricated his or her CV?

In My Professional Opinion (IMPO)…

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CVs are in the news, with the stories questioning whether or not Andrea Leadsom, who is running to be Prime Minister, has exaggerated her career credentials. Whatever truth of that particular claim, what’s the legal position regarding CVs that are more fiction than fact?

What steps can employers take if they think an employees CV has been fabricated?

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5 COMMENTS

  1. Fiona Martin, Director & Head of Employment Law at Martin Searle Solicitors says:

    Discovering that an employee has lied on their CV is certainly going to undermine trust and confidence. The consequences, however, will depend on the extent of the deception.

    Certainly putting your concerns to the employee should be the starting point as mistakes can be made and investigating properly is key to a fair outcome. There is a huge difference between someone saying they don’t have a disability and someone who makes up experience, skills or qualifications essential for doing the job.

    Fraudulent misrepresentation which leads to the employer incurring losses to their business can be prosecuted but should only be embarked upon if the employee has the means to compensate the employer. Checking references and following up on information is always important even though many employers are reluctant to provide anything but basic information.

    Most importantly, competency testing at the interview stage is key as this will usually expose the half-truths and downright lies.

  2. Beverley Sunderland, Managing Director of Crossland Employment solicitors says:

    Implied into every employment contract is the need to have trust and confidence and this is fundamental to the working relationship. If the employee has been seriously untruthful on their CV then this undermines the relationship and calls into question what else they may not have been honest about.

    There is of course a thin line, everyone embellishes their CV to some extent to fit the role they are applying for, if the untruth is minor, such as having grade 8 piano when they have grade 1, then unless they are applying to be a piano teacher, then this is unlikely to give cause to dismiss an employee. But if the untruths are fundamental to the role and would affect an employer’s decision to recruit that person, then most employers would regard this very seriously and would be justified in dismissing an employee. Indeed may even be obliged to do so if the employee does not have the qualifications that they claim to have.

  3. David Ward, solicitor in the employment law team at Blacks Solicitors says:

    Much depends here upon two factors:

    1. whether or not the employee has 2 years’ service (and indirectly, how much time has passed since the CV was provided) and;

    2. the magnitude or extent to which the employee may have ‘lied’.

    Employees with less than 2 years’ service can be dismissed relatively easily as long as their contract of employment is adhered to and they are not discriminated against or subjected to dismissal as a result of having whistle blown, for example. Therefore, an employee who has just recently commenced employment and has provided a CV, which is proven to contain untruths, can be dismissed relatively swiftly as a result. Obviously the more serious the untruth, the harsher the consequences should be in respect of dismissal with or without notice.

    The situation becomes more complicated where there has been a significant passage of time, specifically 2 years’ or more. At which point a full investigatory and disciplinary process should be followed, in accordance with the ACAS Code of Practice on Disciplinary and Grievance Procedures. Of course, an employee with 20 years’ loyal service as an engineer, who stated on their CV that they achieved a B in French at GCSE but actually achieved a C, would not reasonably give grounds for a disciplinary sanction. However, a senior employee in an accountancy firm, for example, who had not achieved the necessary professional qualifications to enable them to practice, could reasonably be dismissed without notice for gross misconduct or potentially a breach of the implied duty of mutual trust and confidence. In these circumstances a regulatory investigation may also be necessary.

    Best practice for employers should be that all offers of employment are at least subject to:

    – the employee having the right to work in the UK;
    – satisfactory references;
    – proof of qualifications upon request; and
    – a Disclosure and Barring Service check, if appropriate.

    Employers should certainly check the results carefully because once an offer is confirmed, termination in most circumstances will require notice, unless there is a prescribed probationary period allowing early termination.

  4. If an employer makes a discovery of fabricated information to an employee who has yet to commence working for the employer, they may want to consider retracting the offer.
    If the discovery is made after employment commences, then they can dismiss without notice if the dishonesty is a serious one that has a significant bearing on the employee’s position.
    The employer will need to consider the risk of committing a breach of contract in the event of a dismissal.
    Alternatively, they can dismiss with notice. If the employee has less than two years of service then they wouldn’t qualify for a claim for unfair dismissal. However, care must be taken where the employee could potentially argue that dismissal gives rise to a claim for discrimination on the grounds of a protected characteristic (one example might be where an employee completes a health questionnaire inaccurately).

  5. There are a number of factors to consider with this scenario, but ultimately it can come to the level of due diligence that the employer was willing to undertake at the outset of the relationship. If you take the time to make checks from the start of the recruitment process – and to put the necessary protective measures in place throughout the process – then you are less likely to be impacted. Like anything, if you leave it to chance you are more likely to get stung.

    Pre-employment checks should be completed irrespective of whether there are concerns over fabrication or not. At its most basic level, of course, this would include an applicant’s ‘right to work’ documents and Disclosure and Barring Service (DBS) checks if required, as is the case for certain professions.

    However, it is quick and easy for any employer to take a more proactive approach these days and there is no reason why further checks should not be made. This should include obtaining references from current or former employers (it is surprising how many employers don’t bother with the basics), speaking to a university to confirm grades or even a simple online search, all of which would help to establish any fabrication of previous roles or achievements at an early stage.

    If the company does not take the time to check that all information presented by the applicant is true before making an offer – as is so often the case, particularly in the private sector – it is clearly more difficult to take action. If the deception is not discovered until much later, especially after two years of employment, when an employee has the right claim for unfair dismissal, the implications may be much more costly.

    This is where it becomes very important for employers to ensure that application forms and offer letters are correctly worded.

    Some might make it a condition of accepting the offer that the applicant gives a ‘warranty’ confirming any statements made on their CV are true and correct. Others may include a line on application forms which give the employer authority to check the accuracy of all information provided.

    If you later find out that statements were false, this would help to remove any difficulty for the employer. False claims amount to fraudulent misrepresentation and especially against a background of an express truth warranty will provide strong grounds for dismissal, even if the employee has completed two years of service. Remember, it is not unheard of for fabrications made during the application stage to come to light after several years of employment.

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