"But I thought you went to Harvard?!" - CVs and Pinocchio's nose
For some the temptation to embellish their résumé is irresistible and recent data shows it is on the increase. Thought patterns like – “is anyone really going to check whether I got an A* in GCSE Chemistry?” or “perhaps I’ll just drop the “deputy” part of that job title…they’ll never notice the difference” are becoming ever more prevalent. Candidates selling themselves is one thing but crossing the line into “CV photo shopping” or just downright lying can have significant career and regulatory consequences and could even result in a criminal conviction for fraud.
Suggestions over the course of the Conservative party leadership race that Andrea Leadsom had exaggerated aspects of her career in financial services have again placed this topic in the spotlight. As a result, employers may well wonder what their options are on discovering that an employee has been dishonest during the recruitment process and what their potential liabilities could be.
Some CV inaccuracies are likely to affect an employer less than others. For example, there might be little consequence for an employer discovering that an employee who described himself as a “keen surfer” had actually only tried it once on a family holiday 20 years ago. However, in certain industries including finance, medicine and law, it is a regulatory requirement for employees to have gained specific qualifications and the responsibility is on the employer to ensure that their employees fit the bill. Aside from the obvious risk to the public posed by under qualified doctors and solicitors and the potential for negligence claims against the institutions they work for, there are financial penalties for those employers deemed not to have carried out sufficient background checks on their staff.
Not only is it in employers’ interests to ensure that their staff are appropriately qualified for their roles, the integrity of professions such as law and banking rely on their employees to be of good and honest character. Employers should therefore take all available steps to ensure that their employees have been truthful about their academic and professional backgrounds by using tools such as the Higher Education Degree Datacheck (HEDD) which is a simple method for confirming applicants’ educational qualifications. Most financial services companies outsource these checks to specialist firms to ensure that the background searches are rigorously conducted.
The impact of “white lies” on a CV can be career-threatening for the individual in the financial services sector. Both the FCA and PRA make it clear that they expect to be notified of any relevant issue that goes to a person’s honesty, integrity and reputation. Serious dishonesty is likely to lead to being censured and/or debarred by the regulator.
A BREACH OF TRUST AND CONFIDENCE?
If a candidate’s dishonesty comes to light prior to the acceptance of an offer of employment and the employer considers it to materially affect the candidate’s suitability for the role, it should be a straightforward case of withdrawing the offer. However, to ensure protection from claims of discrimination, employers should make it clear in the offer letter that the offer is conditional on full verification of the candidate’s qualifications and that it could be withdrawn if any information provided during the recruitment process turns out to be false.
If, after they have commenced work, it is discovered that an employee has lied about their qualifications or experience and the misrepresentation is sufficiently serious, it could amount to a breach of the implied duty of trust and confidence between the employee and the employer, entitling the employer to dismiss the employee without notice (all breaches of this implied term are fundamental and repudiatory).
Whether the breach is sufficiently serious will depend on the individual facts but in cases where an applicant would not have been offered the role but for his misrepresentation, an employer would normally be able to dismiss without notice. An example might be a surveyor who had lied about his date of qualification in order to appear more experienced than he actually was.
In other cases, the employer might choose to terminate the employment relationship with notice, in accordance with the terms of the employment contract. It will be at the employer’s discretion as to whether the employee’s ability to continue in the role is compromised but the situation could become more complicated if the dishonesty surfaces after a long period of time and has little bearing on the person’s ability to do their job. Employees with two years of continuous employment are able to bring a claim for unfair dismissal and in such cases employers must establish that dismissal was a reasonable response to the misconduct. Therefore employers should seek legal advice when considering dismissing a longstanding employee, especially if they have demonstrated their capability in their role over the course of their employment, notwithstanding that it was misleading information that contributed to their initial recruitment. In practice, it is likely that the grounds for such a dismissal would be misconduct or misrepresentation but employers have to be careful that their decision to terminate the contract of employment is a proportionate response to the offence.
To decrease the risk of incurring liability for unfair dismissal and potentially significant damages, in addition to conducting robust background checks and ongoing verification, employers should also ensure that their standard offer letters, employee handbooks and contracts of employment make it clear that any form of misrepresentation by an employee as to their suitability for a role will be considered to be gross misconduct.
Employees should also be reminded that making a false statement in order to gain employment is a criminal offence under the Fraud Act 2006 and carries a maximum sentence of ten years’ imprisonment. Anyone still tempted to be creative with the truth should be reminded about Rhiannon Mackay who was the first woman to be jailed for CV fraud in 2010 when she lied about her A levels in her application for a post within the NHS.
CV misrepresentation is perhaps a natural consequence of an increasingly competitive employment market and employers need to remain alert. However, they should also ensure that they react proportionately when dishonesty is discovered and seek advice if they consider the offence to be sufficiently serious to warrant dismissal.
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Focus Antitrust - 13 February 2019
The latest edition of our regular Focus Antitrust update.