Back in 2017, a YouGov survey revealed that at least 10% of British people openly admitted to having lied on their CV, with 40% of those confessing to embellishing their education and qualifications in some way, revealing just how common the issue of casual CV fraud actually is.
Here we investigate the legalities surrounding dishonesty during recruitment while also assessing 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?
An employee who has lied on their CV in order to win a job may be viewed as having committed gross misconduct, entitling the employer to terminate their employment contract without notice. Alongside this, should it be discovered that an employee does not have the qualifications necessary for their role, the employer could terminate the contract on the grounds of capability.
If already in employment, once it is discovered that an employee has misrepresented themselves on their CV, employers need to take reasonable action to lessen any risk to their business. This will likely mean bringing disciplinary proceedings against the employee, which may result in dismissal, or if appropriate, a report being lodged with the police.
The recent Supreme Court case of R v Andrewes (2022) acts as an apt reminder of the possible consequences under criminal law for an employee who fabricates information on their CV. In this case, Mr Andrewes gained employment as the CEO of a hospice by falsifying qualifications on his CV. In 2017, Mr Andrewes pleaded guilty to both fraud and to obtaining a pecuniary advantage, namely his earnings, by deception under the Theft Act 1968.
As a result, Mr Andrewes was sentenced to two years in prison. Then in August this year, the Supreme Court also found that it would be reasonable to confiscate a proportion of the wages that Mr Andrewes had earned during his employment and upheld a confiscation order under the Proceeds of Crime Act 2002.
Potential Consequences for Employers
Hiring personnel who do not have the prerequisite skillset to perform the tasks demanded by a particular role could pose considerable legal, financial, and reputational risks to an employer.
For example, their lack of experience or knowledge may result in poor quality or defective care, posing a health and safety risk to members of the public, for which the employer could then be held liable.
As such, it is prudent for employers to carry out due diligence to make sure they are hiring suitably skilled candidates. Proactive screening measures employers could utilise include:
- Conduct background checks such as Disclosure and Barring Service or credit checks. Also, review publicly available social media channels for consistency, subject to data protection obligations.
- Seek relevant references from either previous employers or academic institutions. Job offers should always be made subject to receiving satisfactory references.
- Request evidence of qualifications such as original certification. Be aware that digital versions may have been doctored.
- Consider your interview techniques being sure to ask candidates about their experience and using competency-based questions to test their abilities.
Data protection considerations
Employers need to take into account their responsibilities under the Data Protection Act 2018 and UK GDPR before assembling any personal data on a candidate. The key considerations here are:
- There must always be a lawful basis for processing another individual’s personal data, such as it being necessary for the decision-making process over whether or not to appoint someone. However, additional grounds will be necessary where the personal data the employer is collating is of a sensitive nature, eg criminal records.
- Employers should provide prospective employees with a privacy notice that outlines the specific data the company intends to collect during the recruitment process, how this data will then be utilised, how it will be stored and processed, who will have access to it and what decisions it will help to inform. The privacy notice will need to be provided before any data collection is undertaken to ensure that the employer’s legal obligations have been satisfied.
Summary
The ramifications of an employee lying on their CV can be extensive for both employers and employees alike. Because of this, employers should ensure their recruitment processes are fit for purpose and strike the appropriate balance between taking reasonable action to verify a candidate’s professional standing against their obligations regarding data protection.
- Anna Bithrey is a solicitor in employment law at law firm Taylor Walton. She specialises in Transfer of Undertaking (Protection of Employment) and outsourcing, managing terminations of employment, employment tribunal support, employment documentation and business reorganisations and redundancies.