BUSINESS FOCUS
BEING DISHONEST ON A CV CAN BE A COSTLY MISTAKE
Everyone lies on their CV, right? Anna Bithrey of legal firm Taylor Walton looks at the implications for employees and employers.
10% OF BRITISH people admitted to having lied on their CV according to a 2017 YouGov survey, with 40% of those stating that they have in some way embellished their education and their qualifications. What are the legalities surrounding dishonesty on CVs, and what employers can do to better spot potential untruths and how they should respond if they ever find out an employee has been misleading about their experience.
What is the law? Any employee who has lied on their CV may be seen as having committed gross misconduct, which will entitle the employer to terminate that employee’s contract without notice. Alternatively, if an employee is discovered to not in fact have the appropriate qualifications required to perform a role, an employer could terminate them on the grounds of capability. Should an employee be found to have misrepresented themselves on their CV once already in employment, employers will need to take reasonable action to mitigate any risk to their business. This will mean commencing disciplinary proceedings against the employee which could result in dismissal, or a report being made to the police if appropriate.
The recent Supreme Court case of R v Andrewes (2022) acts as a stern reminder, to both employers and employees, of the possible consequences under criminal law for an employee who fabricates information on their CV and emphasises the importance of being honest in the job application process.
In this case, Andrewes gained employment as the CEO of a hospice, under the false impression that 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 also pleaded guilty to fraud.
As a result, Mr Andrewes was sentenced to two years imprisonment. In August this year, the Supreme Court held that it was also reasonable to confiscate a proportion of the wages that Mr Andrewes had earned during the course of his employment and upheld a confiscation order under the Proceeds of Crime Act 2002.
Potential Consequences
Hiring underqualified personnel could pose considerable legal, financial and reputational risks to an employer.
For example, employees who are not qualified to undertake their specific responsibilities may provide poor quality or defective work for customers or pose a health and safety risk to members of the public or other colleagues, for which the employer could then be held liable.
Employers should carry out due diligence to ensure they are hiring a suitably skilled candidate into the role they are recruiting. Practical screening measures employers could include: ¡ Conduct background checks such as DBS or credit checks and review publicly available social media (subject to data protection obligations) ¡ Seek references from previous employers or academic
November 2022
www.buildersmerchantsjournal.net
institutions. Job offers should only ever be made subject to receiving satisfactory references. ¡ Request evidence of qualifications such as original certificates. ¡ Consider your interview techniques including reviewing of CVs to identify any gaps, being sure to ask candidates about their experience and using competency-based questions to test their ability to perform the role successfully.
Data protection considerations
Employers must take into account their responsibilities under the laws on data protection (namely the Data Protection Act 2018 and UK GDPR) before compiling any personal data on a candidate. The key considerations are: 1. There must be a lawful basis for processing the data. This will normally be that the employer
“Any employee who has lied on their CV may be seen as having committed gross misconduct, which will entitle the employer to terminate that employee’s contract without notice.”
has a legitimate interest to collect personal data in order to decide whether to appoint someone to a role. However, additional bases will be required where the personal data the employer is proposing to collect is of a sensitive nature, such as with criminal convictions. 2. 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 other matters, the data that 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 that the employer’s obligations have been satisfied.
Summary
The consequences of an employee lying on their CV, can be far- reaching, for both for employers and employees alike. As such, employers should be sure to undertake a thorough review of their recruitment processes so that they can be confident that they have an appropriate balance between taking reasonable action to verify the information provided by candidates on their suitability for a role against their data protection obligations. BMJ
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