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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An offer can be withdrawn at any time before acceptance.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 It should be stated that the offer may be withdrawn at any stage after acceptance, and employment, if commenced, terminated with immediate effect, if any information given during the recruitment process proves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!”

The Good Work Plan delivers some good news for work-seekers

The latest statutory instrument coming out of the Good Work Plan, The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2019 has been laid before Parliament. This is the government's attempt to address the recommendation from the Taylor Review that information available to workers should be more transparent, particularly when it comes to pay.
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The Good Work Plan delivers some good news for work-seekers

New guidance issued on employment references

New guidance from the UK Advisory, Conciliation and Arbitration Service (Acas) provides employers with a timely reminder in relation to their obligations when providing and obtaining references which is an area in which employers can easily fall foul if they are not careful.
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New guidance issued on employment references

CIPD reports that a reduced amount of EU to UK migration has caused a skills shortage in the UK

According to CIPD's latest quarterly labour market snapshot, a slump in the number of EU citizens migrating to the UK has exacerbated skills shortages in the UK.
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CIPD reports that a reduced amount of EU to UK migration has caused a skills shortage in the UK

Declining number of graduate recruitment roles

There have been rumours circulating in the news over the past 12 months about the declining number of graduate roles that will be available in the UK over the next few years. And it seems that those fears have not been unfounded. Research carried out by High Fliers, the student research specialist, has shown that the UK's biggest graduate recruiters - including Goldman Sachs, Unilever and BP – hired almost 1,000 less graduates in 2016 than they originally anticipated at the start of that year. Many are speculating that this is the result of ongoing and widespread uncertainty about how Brexit will affect businesses in the years ahead. The largest drop was seen in the accounting and professional services companies, banking and finance and investment banking. This trend was also reflected in the private sector, with statistics reporting that graduate recruitment for those business fell 10.3 per cent in 2017.
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Declining number of graduate recruitment roles

Greek government’s imposition of height restrictions on its police force falls short of equal treatment

In the recent case of Ypourgos Ethnikis Pedias kai Thriskevmaton v. Kalliri, the European Court of Justice (ECJ) held that the requirement for candidates for the Greek police academy to be at least 170cm tall amounted to indirect sex discrimination which could not be objectively justified.
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Greek government’s imposition of height restrictions on its police force falls short of equal treatment

New requirement for public sector workers to speak fluent English

From 21 November 2016, public bodies are under a duty to ensure that staff in customer-facing roles can speak fluent English (or Welsh, in Wales). The government intends to use this development to ensure that the relevant members of staff have a command of spoken English which is sufficient to enable the effective performance of their role.

The new duty applies to existing staff and new recruits of bodies that carry out functions of a public nature. This includes (but is not limited to) the NHS, local governmental bodies, central government departments, state education and public corporations.

The responsibility for ensuring that the relevant individuals meet the required levels of fluency lies with the public authorities. Employers may decide to measure this formally (by setting a test) or informally (perhaps through conversation during the interview). The government has also published a code of practice to help employers meet the correct standard. The code suggests that the levels of fluency required by employers, will depend on various considerations, such as:

  • the frequency of any spoken communication with the public;
  • the topic and length of the spoken interaction;
  • whether the communication is likely to include technical, profession-specific or specialist vocabulary; and
  • how significant the spoken interaction is to deliver the service.

Employers should note that they must also operate a complaints procedure in line with this development. Members of the public will be able to use this procedure to complain about a staff member who they consider cannot speak English competently. Therefore, maintaining the necessary levels of fluency will help an employer to protect its reputation by limiting the number of complaints it receives from the public.

We encourage all public authorities to make existing staff aware of the new requirement and the consequences of a failure to meet the necessary levels of spoken English. Where appropriate, employers may also wish to amend employment contracts to make the relevant roles conditional upon the individual meeting the required standard of fluency. As a matter of best practice, employers should update recruitment processes so that job adverts clearly set out the standard of English required for a particular role and adhere to that standard when assessing a candidate’s suitability for it.

We recommend that where existing staff fail to meet the necessary threshold, employers should provide relevant training and monitor staff development. If an employer does not consider there has been sufficient improvement in the spoken English of any member of its customer-facing staff within a reasonable period of time, employers might try to identify alternative measures (for example, whether there is a suitable alternative position available for that member of staff or whether they can adjust that role so that they are not in a customer-facing position). However, employers should exercise caution against imposing any unilateral changes. Further, employers should only consider dismissal as a last resort, and we recommend that any employer exploring this option seeks legal advice first.

New requirement for public sector workers to speak fluent English

Calling HR: time to give your views on the work, health and disability green paper on “improving lives”

The government has produced a consultation paper, “Work, health and disability: improving lives”. The paper highlights the following striking statistics:

  • 1.8 million employees on average have a long-term sickness absence of four weeks or more in a year;
  •  ill health among working-age people costs the economy £100 billion;
  • sickness absence costs employers £9 billion a year;
  • there has been an increase of over 400,000 in the number of working-age disabled people in the UK since 2013, taking the total to more than 7 million;
  • 8 per cent of employers report they have recruited a person with a disability or long-term health condition over a year; and
  • less then half (48 per cent) of disabled people are in employment, compared to 80 per cent of the non-disabled population.

Over 3.3 million disabled people are now in work; however, many disabled people find employers reluctant to give them a chance. Disabled people also struggle with the interplay between work and the benefits system, which is not tailored to helping them stay in work. The government paper signals a desire for change (although this change may not happen overnight). The paper seeks employers’ views on areas including:

  • the key barriers preventing employers of all sizes and sectors recruiting and keeping the talent of disabled people and people with health conditions;
  • information that it would be reasonable for employers to be aware of to address the health needs of their employees;
  • reform of statutory sick pay to encourage a phased return to work;
  • how to ensure that all healthcare professionals recognise the value of work and consider work during consultations with working-age patients; and
  • the role of doctors in providing work and health information, making a judgement on fitness for work and providing sickness certification.

Views are sought from various respondents including both large and small employers, people with health conditions and disabled people, families, friends, teachers and carers. The consultation closes on 17 February 2017. Responses can be filed here.

Calling HR: time to give your views on the work, health and disability green paper on “improving lives”

The Fall of Big Sam

Last week, the Football Association (FA) dispensed with the services of its shortest-serving England manager after just 67 days in the role and following only one game in charge. Sam Allardyce (Allardyce) was removed from his position last Tuesday after reports revealed that he advised undercover reporters (posing as businessmen) on how to circumvent the FA’s third party ownership rules. The FA stated that this amounted to a “serious error of judgement” and “inappropriate conduct”, which undermined the integrity of the game.

Allardyce was previously investigated by the BBC’s Panorama for impropriety in 2006 in a programme called “Football’s Dirty Secrets”, when he was accused of accepting bribes from agents to sign players. Reports state the latest revelations are the result of a 10-month investigation by The Telegraph to uncover corruption in football. However, the actions that have led to Allardyce’s departure post-date his appointment to the role. Therefore, the due diligence the FA will have likely undertaken as part of the recruitment process will not have revealed these issues.

There are several measures employers can take during the recruitment process to try and protect themselves against appointing individuals who will bring the organisation into disrepute. For example, employers should:

  • Carry out thorough pre-employment checks to safeguard the organisation and certify the information they are relying on. Employers should be transparent and open with candidates about the process they intend to adopt.
  • Adopt a cautious approach to use of social media when researching candidates’ backgrounds. Employers should ensure that they limit their searches to only target information relevant to the decision whether to employ the individual. Employers should also remember that employment laws on discrimination apply to online and offline checks in equal measure.
  • Undertake due diligence to satisfy themselves that candidates will not discredit the organisation or cause difficulties with colleagues or clients following their appointment.
  • Seek references from previous employers. Where previous employers reference events that occurred several years ago, these might no longer be relevant to a candidate’s suitability. However, where employers are regulated, they may wish to set tougher conditions that must be met to qualify for the role, or include warranties in the contract of employment to cover the risks associated with the information revealed.
  • Consider where their information has come from before using it. Where information is already in the public domain, it may be legitimate for an employer to rely on this. However, employers should not rely on information based solely on rumour or suspicion.
  • Make provision for any specific rules and regulations that will affect the employee.

Where the candidate will be subject to certain regulations, employers may wish to include a clause in the employment contract that encompasses the duties under these regulations. For example, the contract could include a term that states “you will abide by all your duties including all regulatory duties”.

Where an employee’s misconduct only arises after their appointment (or only comes to light following the recruitment process), employers should be careful not to have a knee-jerk reaction and instead assess whether the behaviour in question justifies disciplinary action. Employers should carry out any disciplinary processes in accordance with their policies and procedures to ensure that they take a fair approach. It may be that the employee is simply given a written warning, but, in the most extreme cases, an employer may wish to terminate the employment contract.

If a fixed-term contract does not allow for early termination, an employer can only end the contract early without breaching it if the employee has committed a repudiatory breach of contract. It is reported that the FA has entered into a settlement agreement with Allardyce, though, due to the confidentiality of the agreement, it is not clear on what terms. Had the parties not entered into this mutual agreement, the FA may have been able to justify dismissal without notice on grounds of gross misconduct. To do so lawfully, it would have to show that Allardyce’s actions fundamentally undermined the trust and confidence between himself and the governing body, essentially amounting to a repudiatory breach of contract.

It is unclear at this stage whether The Telegraph’s investigations will thrust any other managers into the headlines: only time will tell. However, any manager who encourages or condones a breach of the FA’s regulations is likely to face severe questioning and, potentially, disciplinary action.

The Fall of Big Sam

Insight: UK Employment Law Round-up – September 2016

UK Employment Law Round-up In this issue, we look at whether a job applicant can gain protection under the Framework and Equal Treatment Directives if the purpose of the application is to gain the status of someone who can make a claim to gain compensation.

In our case law review, we will also re-visit what constitutes “normal remuneration” when calculating holiday pay and whether a reasonable adjustment for a disabled employee can extend to payment protection.

We provide guidance on how offers of employment should be made to ensure that communication about employment is not misinterpreted by prospective employees.

We also report on the most recent developments regarding the Apprenticeship Levy and the changes to the taxation of termination payments.

Read the full newsletter here.

Insight: UK Employment Law Round-up – September 2016