In 2017, a YouGov survey found that 10% of British people admitted to having lied on their CV, with 40% of those individuals having falsified their education and qualifications. Other subsequent surveys have found that the number of people falsifying or embellishing the truth on their CV could be substantially more than this. As these surveys demonstrate, the issue is perhaps more commonplace than most employers expect. In this article, we explore the legalities of an employee falsifying their CV and what employers can do to mitigate the risk of employing such an individual and what they should do if they find an employee has been dishonest on their CV.
What is the law?
From an employment law perspective, if an employee is found by an employer to have obtained their role through dishonest means by falsifying their CV or providing inaccurate information, depending on the severity of the dishonesty and the element of their experience the employee has falsified, this is likely to be a serious breach of the contract of employment entitling the employer to terminate the employment without notice on the grounds of gross misconduct.
Alternatively, if an employee has wrongly claimed about having the employer’s required qualifications to perform a specific role, it may also be open to an employer to terminate the employment on the grounds of capability. These are the usual routes we expect most employers would take.
However, the recent Supreme Court case of R v Andrewes (2022) acts as a stark reminder, to both employers and employees, of the potential consequences under criminal law for an employee who falsifies information on their CV and highlights the importance of being honest in the job application process.
In this case, Mr Andrewes obtained employment as the Chief Executive Officer of a hospice, under the false impression that he had particular qualifications by falsifying his CV. In 2017, Mr Andrewes pleaded guilty to obtaining a pecuniary advantage, namely his earnings, by deception under the Theft Act 1968 and also pleaded guilty to fraud. As a result, at the time Mr Andrewes was sentenced to two years’ imprisonment. In August this year, the Supreme Court held that it was also proportionate to confiscate a proportion of the wages that Mr Andrewes had earned through fraudulent means and upheld a confiscation order under the Proceeds of Crime Act 2002 for £96,737.24 of the £643,602.91 net earnings Mr Andrewes had earned during the course of his employment.
Potential Consequences for Employers
During his employment, Mr Andrewes had been complimented by his employer for his strong performance as CEO, which suggests that despite his deception, he had been able to perform the role competently. However, the consequences of hiring an under qualified individual could have a substantial impact on an employer’s business and carries a number of risks from a legal, financial and reputational perspective.
For example, if an employee is not suitably qualified to perform the role they are employed to do, depending on the type of role, this could give rise to health and safety risks and/or negligence for which the employer will be vicariously liable. An employer is more likely to be held liable for the negligent acts of its employees where the employer failed to carry out proper due diligence on the employees it is engaging to perform certain functions.
Hiring under-qualified employees could mean that the services the employee provides to the employer’s clients and customers is defective which could, in turn, give rise to claims against the business resulting in the employer having to defend costly litigation and suffer substantial financial losses.
Furthermore, hiring candidates who do not have the requisite qualifications and experience may cause the employer to suffer reputational damage. In less serious cases, this could simply mean the job has not been performed to a standard usually expected of their business. In more serious cases, reputational damage could result from the under qualified individual putting other workers and members of the public in harm’s way.
How can employers mitigate this risk?
There are a number of ways in which an employer can demonstrate they have carried out the appropriate due diligence and fact-checking on their candidates to ensure that the job application submitted is truthful and they are appointing a suitably qualified candidate to the role. Practical steps employers can take to screen candidates includes:
• Background checks
A candidate may be subject to background checks by virtue of the nature of the role they are applying to, such as DBS checks when working with vulnerable individuals. An employer may also consider conducting a credit check, however employers will need to ensure that this is proportionate to the role being applied for. It can also be beneficial to carry out a background check on the candidate by reviewing their publically available social media such as LinkedIn or Facebook. Some employers may wish to take this further, by instructing an investigator to validate/source further information about a candidate. However, before conducting any kind of background check, employers will need to consider whether they have a lawful basis for doing so under data protection laws (see below).
• References
It is helpful to ask the applicant for specific, and relevant, references, such as from previous employers, or from an academic institution, to ensure that their employment history or qualifications are correct. Employers may also wish to check the validity of the source by using the company’s/institution’s website to search for their contact details. It is imperative that employers ensure that any job offer is made subject to receiving satisfactory references to avoid having to pay their way out of a contact if the references are not satisfactory.
• Evidence of qualifications
Employers can request that candidates provide their original qualification certificates. It is more challenging for an individual to forge an original hard copy certificate, as opposed to a certificate online. This can give employers the confidence that the appropriate qualifications have been obtained although this may not be practical where the qualifications were obtained some time ago. If a candidate has difficulty providing evidence of their qualifications, there are specialist companies who are able to perform background checks to obtain their information.
• Interviewing techniques
An interview is a useful resource to establish whether or not an employer believes a prospective employee to be genuine. Prior to the interview, the employer should carefully review the CV of the candidate to identify any potential gaps. Ask the candidate questions about their history, and try to obtain a detailed understanding of the important areas of their experience. If you have any doubts about their answers, you can continue to ask further questions to identify any inconsistencies or use competency-based questions to test a candidate’s ability to perform the role.
If an employer finds that an employee has falsified their CV once they have already started employment, employers will need to be able to demonstrate that they have taken appropriate steps in relation to that employee to mitigate the risk of damage to their business. In most cases, this is likely to mean that the employer commences disciplinary proceedings against the employee which may result in dismissal. Employers will also need to consider whether it is appropriate to report the employee to the police in the circumstances.
Data protection considerations
It is important that employers consider their obligations under the laws on data protection (namely the Data Protection Act 2018 and UK GDPR) before collecting any personal data regarding a candidate. The key considerations for a prospective employer are:
1. Is there a lawful basis for processing the data? This will usually be that the employer has a legitimate interest to collect personal data to decide whether to appoint someone to a role beneficial to their business. However, additional bases will be required where the personal data the employer is proposing to collect is sensitive personal data, such as about criminal convictions.
2. Is the candidate been provided with a privacy notice explaining how their data will be processed? Employers should provide prospective employees with a privacy notice, outlining, among others matters, the data that the company intends to collect during the recruitment process, how this data will be used, how it will be stored and processed, and what decisions will be made using this data. The privacy notice should be provided before the data collection process is carried out to ensure that the employer’s obligations have been satisfied.
The consequences of an employee falsifying their CV, both for an employer and employee, are potentially far-reaching and in some circumstances can be extremely serious resulting in a criminal conviction. Employers should undertake a review of their recruitment processes to ensure they have an appropriate balance between taking all reasonable steps, in the context of their industry, to verify the information provided by candidates on their suitability for a role and balance this against their data protection obligations.
Alec Colson is a Solicitor and Head of Employment at Taylor Walton LLP. He can be contacted on 01582 390470 or via email alec.colson@taylorwalton.co.uk
