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“Anything is better than lies and deceit!”

We are accustomed to hearing on an almost daily basis about “fake news”. What about “fake CVs”?

If an applicant lies during the recruitment process, either expressly or by omission, on their CV, job application or in other pre-employment information you could end up recruiting an employee you ultimately do not want or who is unsuitable for the job.

How to deal with a lying applicant will depend on the stage of the recruitment process and on the extent of the deception.

Before an offer is accepted

An offer can be withdrawn at any time before acceptance. So simply withdrawing the offer will be the easiest way of dealing with a lying applicant. It will be important to keep a record showing that the offer had not been accepted and clearly setting out the reasons for withdrawing the offer. This provides good support to defend the claim if the applicant subsequently alleges, for example, a discriminatory reason for the withdrawal of the offer.

After an offer is accepted

Once an offer of employment has been accepted, and any conditions of the offer have been satisfied, a contract of employment will be formed. Thereafter, unless the contract allows for summary dismissal in the circumstances, normally contractual notice will have to be given to terminate. Failure to do so may be a breach of contract, for which the employee can sue either in an employment tribunal or in the civil courts.

Dismissal without notice may be justifiable where the dishonesty is significant enough to amount to a repudiatory breach on the part of the employee. This is often referred to as gross misconduct and gives an employer grounds to treat the conduct as a breach of trust and confidence which brings the employment relationship to an end.

Offers should be qualified to make it clear dishonesty in the application process will have significant repercussions. It should be stated that the offer may be withdrawn at any stage after acceptance, and employment, if commenced, terminated with immediate effect, if any information given during the recruitment process proves to be substantially incorrect or dishonestly provided.

Once the applicant has commenced employment

Once employment has started, the usual rules around unfair and wrongful dismissal will apply. Though the employee is unlikely to have two years’ service,  automatic unfair dismissal (e.g. for reasons connected with pregnancy or whistleblowing), which does not require a minimum period of service, may still be argued by the employee. You will also have to be mindful of any applicable notice periods.

Again, depending on the level of dishonesty, the employer may be able to dismiss with or without notice. The dismissal should normally be treated as a conduct dismissal.

Where you suspect or identify information that appears to have been provided dishonestly we recommend that you speak with the applicant or new start about this to understand if there has been an error. However, an error of this kind may also be used to support a conclusion the person is just not a good fit for the role.

“Anything is better than lies and deceit!”

“Leaving no one behind”: the Equal Measures 2019 Gender Index

Equal Measures 2030 (EM2020) is an independent civil society and private sector-led partnership which envisions a world where gender equality is achieved, and every girl and woman counts and is counted. To achieve this EM2030 connect data and evidence with advocacy and action, helping to fuel progress towards gender equality. Partners include heavyweight organisations such as the Bill and Melinda Gates Foundation and  Plan International.

Earlier this month Equal Measures 2030 published it’s 2019 gender index which is very interesting to read and gives us useful data on the progress that is being made towards gender equality.  It is described as being the “most comprehensive tool available to explore the state of gender equality across 129 countries”.  If your role involves driving progress towards equality and diversity in the workforce, this is a useful resource to use to demonstrate where good progress is being made and where lessons can be learned. 

The index as it currently stands finds that nearly 40% of the world’s girls and women (1.4 billion) live in countries failing on gender equality.  The same number live in countries that “barely pass”. This is a challenging picture with 11 years to go until 2030.

The Index looks at gender commitments within the following sustainable development goals (SDG): poverty; hunger and nutrition; health; education; gender equality; water and sanitation; energy; work and economic growth; industry, infrastructure and innovation; inequality; cities and communities; climate; peace and institutions; and partnerships.

The Index ranks Denmark highest overall, with the UK in 17th place.

SDG 8 is “Work and Economic Growth”. EM2030 recognises the Gender equality in employment gives women more decision-making power and enhances family well-being: women will typically invest more of their income than men in the health, nutrition and education of their children. Finland leads in the areas of Work and Economic Growth. Finland, in particular, is noted as having reasonably strong public services and social safety nets.

EM2030 encourages us all to “harness the power of data for gender equality”. Their vision is that using data effectively and to influence campaigns will lead to real changes in gender equality laws, policies and budget allocations.

The report can be found here. Acknowledgment is given for reproduction of materials.

“Leaving no one behind”: the Equal Measures 2019 Gender Index

Update

This blog is now called the People, Reward and Mobility Hub! Visit ‘Who we Are‘ for more information and keep visiting for the latest updates in employment, pensions and immigration.

Update

Proposal to make redundancy for expectant and new mothers redundant

A 10-minute Rule Bill was introduced in the House of Commons last month by the Chair of the Women and Equalities Committee to enhance the protections for expectant and new mothers against redundancy. The Pregnancy and Maternity (Redundancy Protection) Bill 2019 seeks to prohibit redundancy from the point a woman notifies her employer she is pregnant, until six months after the conclusion of her maternity leave.

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Proposal to make redundancy for expectant and new mothers redundant

Manifesting one’s beliefs vs inappropriately proselytising them – where is the line?

In Kuteh v. Dartford and Gravesham NHS Trust [2019] EWCA Civ 818 the Court of Appeal was asked to consider whether the dismissal of a Christian nurse for repeatedly failing to follow reasonable management instructions not to initiate inappropriate religious conversations with patients was unfair.
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Manifesting one’s beliefs vs inappropriately proselytising them – where is the line?

Court of Appeal rules that employers can enhance maternity pay without offering enhanced shared parental pay

The Court of Appeal has held that it is neither unlawful sex discrimination (direct or indirect) nor a breach of the sex equality clause implied into all contracts by the Equality Act 2010 (EqA) to pay men on shared parental leave less than birth mothers on statutory maternity leave.
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Court of Appeal rules that employers can enhance maternity pay without offering enhanced shared parental pay

Can an employee’s dismissal be discriminatory if the employer only finds out about the disability at the appeal hearing?

In Baldeh v. Churches Housing Association of Dudley and District Ltd [2019] UKEAT/0290/18, the Employment Appeal Tribunal (EAT) held that, where an employer is unaware of an employee's disability at the time of dismissal but learns about this disability at an appeal hearing, the dismissal may be considered discriminatory.
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Can an employee’s dismissal be discriminatory if the employer only finds out about the disability at the appeal hearing?

Can a transfer of clients’ investments amount to a transfer of undertakings?

In Dodic v. Banka Koper and Alta Invest (Case c-194/18) EU:C:2019:385, the ECJ was asked to consider whether the transfer of intangible client investments from one undertaking (which had ceased investment services activity) to another could constitute a transfer of an undertaking for the purposes of the Acquired Rights Directive. It determined that it could in principle, but the question of whether there actually had been such a transfer in this case was remitted to the national court to decide. Banka Koper (Banka) ceased operating as a stock exchange intermediary. Banka transferred these activities (as it was obliged under Slovenian law) to another intermediary, Alta Invest. It was agreed that Banka would work for Alta Invest as a dependent stock exchange intermediary. Banka therefore informed its clients that, as Banka would be ceasing investment services operations, they could transfer their accounts to Alta Invest for free. A large majority of Banka's clients therefore transferred over to Alta Invest. As a result of ceasing these activities, Banka dismissed all its employees in its investment services office. Mr Dodic, who was one of the dismissed employees, claimed that there was a transfer of undertakings and that his employment should have transferred to Alta Invest. The case went all the way to the Slovenian Supreme Court which asked the ECJ to consider whether there had been a transfer of an undertaking even though: • Banka's clients could have transferred their investments to an intermediary other than Alta Invest; and • Banka continued to operate as a dependent stock exchange intermediary and co-operated with Banka. The ECJ found that the transfer of financial instruments from one undertaking to another following the ceasing of the former's business could constitute a transfer of an undertaking for the purposes of the Acquired Rights Directive. This was subject to the usual requirement that it had retained its identity post transfer (i.e. that there was a transfer of clients). This was, however, a matter for the referring national court to decide. The fact that the clients could choose to move their investments elsewhere and that Banka continued to operate as a dependent stock exchange intermediary was irrelevant.
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Can a transfer of clients’ investments amount to a transfer of undertakings?

Update – Employer NICs on Termination Awards

On 25 April 2019, the National Insurance Contributions Bill was introduced to Parliament. The Bill deals with the national insurance contributions (NICs) treatment of termination payments made by employers to employees in connection with the termination of employment.
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Update – Employer NICs on Termination Awards

HMRC issues guidance on preparing for changes to off-payroll working in the private sector (IR35)

As we flagged on this blog back in March (post here), a consultation is currently open on implementation of the extension of the IR35 rules on deducting tax and National Insurance contributions at source to medium and large private sector organisations which engage individual contracts via intermediaries.

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HMRC issues guidance on preparing for changes to off-payroll working in the private sector (IR35)