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An offer can be withdrawn at any time before acceptance.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 It should be stated that the offer may be withdrawn at any stage after acceptance, and employment, if commenced, terminated with immediate effect, if any information given during the recruitment process proves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