Anna Bithrey suggests practical ways that employers can screen applicants and mitigate the risks to business
In 2017, a YouGov survey in the UK revealed that approximately 10% of British adults admitted to being dishonest on their CVs, with 40% of those lying about their education or qualifications. Subsequent surveys have found that the number of people lying or embellishing the truth on their CV could be substantially more than this, implying that the issue may be more widespread than expected.
Here, we explore the legal issues surrounding the falsification of a CV, how to spot the signs of dishonesty, and what an employer should do if they find that one of their employees was untruthful when they applied for their role.
What Is the Law in the UK?
Legally, there are two usual routes most employers would take if an employee is found to have obtained their role through dishonest means.
Firstly, it is likely to be considered a serious breach of the contract of employment, thus entitling the employer to terminate the employment on the grounds of gross misconduct, without notice.
Secondly, if an employee has lied about having the required qualifications to perform a specific role, the employer could terminate employment on the grounds of capability.
However, the recent Supreme Court case R v Andrewes (2022) is a stark reminder of the potential consequences under criminal law for someone who falsifies information on their CV.
Here, Mr Andrewes obtained employment as the CEO of a hospice after giving the false impression that he had certain qualifications on his CV. In 2017, Mr Andrewes pleaded guilty to both fraud and obtaining a pecuniary advantage, namely his earnings, by deception under the Theft Act 1968, for which he was sentenced to two years’ imprisonment. In August 2022, the Supreme Court held that it was also proportionate to confiscate a percentage of the wages that Mr Andrewes had earned through fraudulent means under the Proceeds of Crime Act 2002.
Potential Consequences for Employers
Hiring an underqualified individual could have a substantial impact on an employer’s business and carries many legal, financial and reputational risks.
For example, if an employee is not suitably qualified to perform the tasks they are employed to do, this could pose major health and safety risks and/or 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 appropriate 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 suffer substantial 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 medical settings, reputational damage could result from said employee putting members of the public in harm’s way.
How Can Employers Mitigate This Risk?
There are several ways in which an employer can demonstrate they have carried out the appropriate amount of due diligence and fact-checking on their prospective employment candidates to ensure that any job application submitted is honest and truthful and that they are appointing a suitably qualified candidate to the role. Practical steps employers can take to screen candidates could include:
1. 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. An employer may also consider conducting a credit check; however, employers will need to ensure that this is proportionate to the role being applied for. It can also be beneficial to carry out a background check on the candidate by reviewing their publically available social media such as LinkedIn or Facebook. This could reveal whether an individual did or did not attend a particular university, for example. Some employers may wish to take this further, by instructing an investigator to validate or source further information about a candidate. However, 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).
It is helpful to ask the applicant for specific, and relevant, references, such as from previous employers or an academic institution, to ensure that their employment history or qualifications are correct. Employers may also wish to check the validity of the source by using the company’s/institution’s website to search for their contact details. 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 contract if the references are not satisfactory.
3. Evidence of qualifications
Employers can request that candidates provide their original qualification certificates. It is more challenging for an individual to forge an original hard copy certificate, as opposed to a certificate online. 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 can perform background checks to obtain this information.
4. 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 must 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, the employer 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?
Employers should provide prospective employees with a privacy notice, outlining, among others 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.
The consequences of an employee lying on their CV, both for an employer and employee, are potentially far-reaching and in some circumstances can be extremely serious, resulting in a criminal conviction, as demonstrated by R v Andrewes. Employers must consider undertaking a review of their recruitment processes to ensure they have an appropriate balance in taking all reasonable steps in the context of their industry to verify the information provided by candidates on their suitability for a role, weighed against their data protection obligations.