What is the law?

If an employee is found by an employer to have earned their role through being misleading on their CV, depending on the severity of the lies told, 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 been untruthful about having the qualifications necessary to perform a specific role, it may also be open to an employer to terminate the employment on the grounds of capability.

However, the recent Supreme Court case of R v Andrewes (2022) acts as a stark reminder, to both employers and employees, of the potential consequences under criminal law for an employee who falsifies information on their CV and highlights the importance of being honest in the job application process.

In this case, Mr Andrewes obtained 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, at the time Mr Andrewes was sentenced to two years’ imprisonment. In August this year, the Supreme Court held that it was also proportionate to confiscate a proportion of the wages that Mr Andrewes had earned through fraudulent means and upheld a confiscation order under the Proceeds of Crime Act 2002 for £96,737.24 of the £643,602.91 net earnings Mr Andrewes had earned during the course of his employment.

Potential Consequences for Employers

Fortunately for his employer, Mr Andrewes had been praised for his strong performance as CEO, suggesting that despite his deception, he performed the role competently. However, the consequences of hiring an underqualified individual could be dire; having a substantial impact on an employer’s business and carries many legal, financial and reputational risks. 

For example, if an employee is not appropriately qualified to perform the tasks they are employed to do, this could pose major health and safety risks and/or there is a risk of negligence, for which the employer will be vicariously liable. It is far more likely for an employer to be held liable for the negligent acts of its employees where it failed to carry out proper due diligence on a job candidate.  

Without the suitable qualifications, the services the employee provides for clients and customers could be defective, or even dangerous, which could, in turn, result in the employer having to defend costly litigation, or incur sizeable financial losses.

Furthermore, employees lacking the requisite qualifications and experience may cause the employer to suffer reputational damage. In less serious cases, this could simply mean the job has not been performed to a standard usually expected of their business. In more serious cases, such as in childcare or medical settings, reputational damage could result from said employee placing the public in harm’s way. 

How can employers mitigate this risk?

There are a number of ways in which an employer can demonstrate they have carried out the appropriate due diligence and fact-checking on their candidates to ensure that the job application submitted is truthful and they are appointing a suitably qualified candidate to the role. Practical steps employers can take to screen candidates includes:

• Background checks

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 publicly available social media. However, employers will need to ensure that 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 (see below).

• References

It is helpful to ask the applicant for specific, and relevant, references, such as from previous employers, or from an academic institution, to ensure that their employment history or qualifications are correct.  It is imperative that employers ensure that 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 that candidates provide their original qualification certificates.  This can give employers the confidence that 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. 

• Interviewing techniques

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 that an employee has lied on their CV once they have already started employment, employers will need to be able to demonstrate that they have taken appropriate steps in relation to that employee to mitigate the risk of damage to their business. In most cases, this is likely to mean that 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 in the circumstances.

Data protection considerations

It is important that employers 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:

1. 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.
2. Has the candidate been provided with a privacy notice explaining how their data will be processed? Privacy notices should outline matters such as the specific data that the company intends to collect during recruitment, how this data will then 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 started to ensure that the employer’s obligations have been satisfied.

Summary

The consequences of an employee lying on their CV, both for an employer and employee, can be extremely serious, and in some cases, can result in a criminal conviction as demonstrated by R v Andrewes. To avoid this, employers need to review of their recruitment processes to ensure they achieve 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 managing their data protection obligations.