THE PRICE OF LYING

Being dishonest on a CV can be a costly mistake for all concerned, according to employment law solicitor at Taylor Walton, Anna Bithrey

According to a 2017 YouGov study, 40% of UK adults admitted to lying on their CVs, with roughly 10% of them lying about their education or professional experience. The number exaggerating on their CV may be far higher than this, according to later research, showing that the problem may be more widespread than one may anticipate.

Here, we look at the legal ramifications of lying on a CV, how to spot dishonesty, and what an employer should do if they discover that an employee has been lying about their background and expertise.

WHAT IS THE LAW?

If a person is discovered to have earned their position dishonestly, companies have two options.

Such dishonesty is probably going to be seen as a major breach of the employment contract, giving the employer the right to terminate employment for gross misconduct, without notice.

Additionally, if an employee misrepresented that they have the credentials necessary to carry out a certain task, the employer may terminate employment based on capability.

However, the recent R v. Andrewes (2022) Supreme Court decision serves as a sharp reminderofthe potential legal repercussions for someone who fabricates material on theirresume.

Mr Andrewes gained employment as the chief executive of a hospice, having given the misleading impression that he had specific qualifications on his CV. In 2017, Mr Andrewes pleaded guilty to both fraud and obtaining a pecuniary advantage, namely his earnings, by deception under the Theft Act 1968, for which he was sentenced to two years imprisonment. In August last year, the Supreme Court held that it was also proportionate to confiscate a percentage of the wages that Mr Andrewes had earned through fraudulent means under the Proceeds of Crime Act 2002.

POTENTIAL CONSEQUENCES FOR EMPLOYERS

Hiring an under qualified person has several legal, financial, and reputational implications and might have a significant effect on the employer’s business.

For instance, if an employee is not properly qualified to carry out the work they are hired to do, this might pose serious hazards to their health and safety, and/or they may be negligent in their obligations, in which case the employer will be held vicariously liable. In situations when an employer has neglected to conduct enough due diligence on a job application, it is more probable that it will be held accountable for the negligence of those workers.

Without the necessary credentials, the employee may give subpar or even harmful services to clients and consumers, forcing the company to defend against expensive litigation and maybe incur significant financial expenses.

Additionally, hiring someone without the necessary training and expertise might harm the company’s brand. In less severe situations, this can just indicate that the task wasn’t completed to the standards expected of the business. In more severe situations, including in medical settings, placing members of the public in danger might lead to reputational damage.

HOW CAN EMPLOYERS MITIGATE THIS RISK?

There are several realistic ways for an employer to prove that they have done the proper amount of research and fact-checking during the hiring process to make sure that any job applications submitted are accurate and that they are selecting a candidate who is qualified for the position. Such screening procedures might consist of:

• Conducting background checks such as DBS checks, credit checks, and reviewing publicly available social media (subject always to an employer considering their data protection obligations)

• Seeking references from previous employers or academic institutions. Employers should ensure that any job offer is made subject to receiving satisfactory references

• Requesting evidence of qualifications such as original certificates

• Considering interviewing techniques including reviewing the CV to identify gaps, asking the candidate about their experience, and using competency-based questions to test a candidate’s ability to perform the role.

If an employer discovers that an employee has made false statements on their CV after they have already begun working for them, they must be able to show that they have taken the necessary action to reduce the risk of harm to their business. Most frequently, this means that the company will likely begin disciplinary action against the employee, which may end in dismissal. Depending on the situation, employers must also decide if it is acceptable to file a police report on the employee.

DATA PROTECTION CONSIDERATIONS

Before gathering any personal information on a candidate, companies should consider their duties under the data protection rules (specifically the Data Protection Act of 2018 and UK GDPR). The most important factors for a potential employer are:

1. Employers must have a legitimate interest to collect personal data to decide whether to appoint someone to a role. However, additional checks will be required where the personal data the employer wants to collect is sensitive, such as about criminal convictions.

2. Has the candidate received a privacy notice outlining the processing of their data? Among other things, privacy notifications should explain what information the business plans to gather, how it will use, retain, and analyse that information, and what choices it will help inform. To fulfil the employer’s duties, the privacy notice must be given before the data-collecting procedure is carried out.

SUMMARY

The implications of an employee lying on their CV might be severe and, in certain cases, lead to a criminal conviction, as shown by R v. Andrewes. These penalties could affect both the company and the individual. Employers should conduct a review of their hiring procedures to make sure they strike the right balance between following all reasonable procedures in the context of their industry to confirm the information provided by candidates regarding their suitability for a role and their data protection obligations.