28th July 2011

INFORMATION
UPDATE

 Issue No.  2011/16

 Sentient
              

 

  RECRUITMENT:
Incorrect information on a CV/Application Form

 
We have had a number of calls from employers who have been concerned about the truthfulness of what candidates put on Application Forms or include in their CV’s.  We thought a few comments in an Information Update on this topic would therefore be in order.
 
DURING RECRUITMENT
If you find out about any omission/embellishment as part of the recruitment process, then the candidate’s integrity and possibly honesty may be brought into question where proportionate to the jobs and duties such failings would be good reason for the candidate to be rejected.
 
But what if you do not find out until after you have appointed the candidate? 
Firstly, it depends upon what information has been omitted or embellished.  For example:
 
AFTER RECRUITMENT
Criminal Convictions
A Candidate with a criminal conviction may not wish to highlight they have a criminal conviction and in certain circumstances may legitimately omit that information.  The Rehabilitation of Offenders Act 1974 gives individuals who have a criminal conviction the right, after the passing of time and with some exceptions, to treat the conviction as "spent" or in other words “as if it had never happened”.
 
An employer may ask candidates at interview if they have any convictions and the candidate can reply “no”, if any such conviction is “spent”. If the conviction is ‘current’, (i.e. not “spent”) and the candidate does not disclose it, then depending on circumstances dismissal may be appropriate.
 
Rehabilitation periods (the time period after which a conviction becomes spent) vary dependent on the type of conviction and the length of sentence originally imposed. A conviction with a custodial sentence of more than 2½ years can never be spent. Certain types of employment are exempt from the provisions of the Rehabilitation of Offenders Act.  These are primarily professions and sectors involving provision of care and welfare services, or financial, banking or legal services.
 
However, if an employee has not disclosed a ‘current’ conviction during recruitment but it is discovered after the appointment, then a judgement decision needs to be taken after an investigation has taken place.  A recent conviction for a dishonesty or assault/violent offence will raise doubts about the individual’s suitability for continued employment.  However, if the conviction is about a driving ban, for example, this might not automatically rule the candidate out from continued employment (unless of course, the ban is current and the ability to drive is central to the job). 
 
Health
What if a candidate does not disclose information about their medical history, for example a history of depression?  The Equality Act 2010 prohibits an employer from asking job candidates about their health before making an offer of work, or before including the candidates in a pool of candidates from whom the employer intends (when in a position to do so) to select the candidate to offer work.  Consequently, action cannot be taken against a candidate for not disclosing information which the Employer is not entitled to ask.  There are certain exceptions, such as ensuring the candidate is able to carry out a function that is intrinsic to the position and upon learning of an Employee's health history, an Employer will need to investigate by way of risk assessment that they are able to do the job, but being mindful of their obligations to consider reasonable adjustments and the risk of a disability discrimination claim.
 
Qualifications/Employment History/other claims
If it comes to light that an employee provided false, inaccurate or misleading information relating to employment history, or their qualifications, or made any other claims to try and induce the employer to offer them the job, there are two potential actions for the employer to consider:
 
Misrepresentation
Making inaccurate statement(s) of fact, which are material factors and which induce an employer to enter into a contract of employment, could amount to misrepresentation.  This potentially entitles the employer to compensation e.g. cost of appointing a replacement, recruitment agency fees and any training costs incurred.  Furthermore, in some situations there may be criminal consequences; for example:  obtaining a pecuniary advantage by deception.  This would require the employer to take action.  Initially though the employer will generally ask “are there grounds to dismiss”.  A well worded declaration on an application form or clauses in the terms and conditions of employment will usually enable a “yes” answer.
 
Procedures should be followed through so it is not simply a case of dismissing on the spot.
 
Breach of Contract
Implied in every employment contract is the duty of trust and confidence; and if an employee continues in employment without revealing the truth then they are in breach. If, following an investigation, the severity of the breach is 'fundamental', an employer can dismiss for gross misconduct (i.e. immediately, without notice or pay in lieu of notice) again arriving at this decision at the end of appropriate procedural steps.
 
Employers should obtain professional advice before dismissing an employee in these circumstances, and needs to be sure that the breach is sufficiently serious to justify summary dismissal.

 

 

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The advice and comment in this update is not meant to be an authoritative statement of law. The articles and summaries should not be applied to any specific set of facts and circumstances without seeking further advice. Whilst every care is taken to ensure that the content is correct Sentient cannot accept responsibility for the accuracy of statements made nor the result of any actions taken by individuals after reading such.

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