Being dishonest on a CV can be a costly mistake
Anna Bithrey explores the legalities of an employee lying on their CV and employers’ legal obligations
In 2017, a YouGov survey found 10 per cent of British people admitted to having lied on their CV, while subsequent surveys have found this number could be substantially more.
In this article, we explore the legalities of an employee lying on 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.
If an employee is found by an employer to have obtained their role through being dishonest on their CV, depending on the severity of that dishonesty, this is likely to be considered a serious breach of the contract of employment entitling the employer to terminate the contract without notice on the grounds of gross misconduct.
Alternatively, if an employee has lied about having their required qualifications to perform a specific role, it may also be open to an employer to terminate the employment on the grounds of capability.
What is the law?
The recent Supreme Court case of R v Andrewes (2022) 2020/0166 acts as a stark reminder, to both employers and employees, of the potential criminal consequences for an employee who falsifies information on their CV.
In this case, Mr Andrewes obtained employment as a CEO, under the pretence 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 pleaded guilty to fraud. Mr Andrewes was sentenced to two years’ imprisonment. Further, in August 2022, the Supreme Court held it was proportionate to confiscate a proportion of the wages Mr Andrewes had earned during his employment through fraudulent means and upheld a confiscation order under the Proceeds of Crime Act 2002 for £96,737.24.
Potential Consequences for Employers
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 their role this could give rise to health and safety risks and/or negligence for which the employer will be liable. Furthermore, hiring candidates who do not have the requisite qualifications and experience may mean the employee provides a defective service to clients or customers which causing the employer to suffer reputational damage and giving rise to a risk of costly litigation.
How can employers mitigate this risk?
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 its employees. Employers should be able to demonstrate they have carried out the appropriate due diligence on their candidates to ensure the candidate is suitably qualified. Below are some practical steps employers can take:
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 or credit checks, or reviewing publically available social media. However, employers will need to ensure their checks are proportionate to the role being applied for and 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.
It is helpful to ask the applicant for specific and relevant references, such as from previous employers, or from an academic institution, to ensure their employment history or qualifications are correct. It is imperative employers ensure 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 candidates provide their original qualification certificates. This can give employers the confidence 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.
An interview is a useful resource to establish whether 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 an employee has lied on their CV once they have already started employment, employers will need to be able to demonstrate they have taken appropriate steps in relation to employee to mitigate the risk of damage to their business. In most cases, this is likely to mean 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.
Data protection considerations
Employers should also 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:
- 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.
- has 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 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 the employer’s obligations have been satisfied.
The consequences of an employee lying on 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 as demonstrated by R v Andrewes. 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.
Anna Bithrey is a solicitor in the Employment Law team at Taylor Walton taylorwalton.com