What are the legalities surrounding dishonesty on CVs? Anna Bithrey evaluates what employers
can do to better spot potential untruths and how they should react if they ever find out
an employee has been misleading about their experience.
IN 2017, a YouGov survey found 10% of British people admitted to not being entirely honest on their CVs, with 40% of those individuals having lied about their education or qualifications. Other subsequent surveys have found that the number of people embellishing the truth on their CV could be substantially more than this.
Here we investigate the legalities surrounding dishonesty on CVs, while also evaluating what employers can do to better spot potential untruths and how they should react 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 give the employer the right to terminate a 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, Mr 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 for employers
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:
• Background checks
A candidate may be subject to background checks such as DBS or credit checks, however, employers will need to ensure that this is proportionate to the role being applied for. It can also be beneficial to review any publicly available social media pages. Before conducting any kind of background check, however, employers must consider if they have a lawful basis for doing so under data protection laws (see below).
It’s valuable to ask for specific, relevant references, from previous employers, or academic institutions. Employers should ensure any job offer is made on the understanding that it is subject to receiving satisfactory references to avoid having to pay their way out of a contract if the references are not satisfactory.
• Evidence of qualifications
Employers can request the sight of original qualification certificates. It is more challenging for an individual to forge an original hard copy certificate, as opposed to a certificate online. If a candidate has difficulty providing evidence of their qualifications, specialist companies can perform background checks to obtain their information.
• Interviewing techniques
Carefully reviewing CVs to identify any potential gaps is important. Candidates should be asked questions about their history, and if you have any doubts about their answers, you can continue to ask further questions to identify any discrepancies or use competency-based questions to test their ability to perform the role they have applied for.
Data protection considerations
However, employers need to consider their obligations under the Data Protection Act 2018 and UK GDPR before collecting any personal data regarding a candidate. In particular:
•Employers should ensure they have a lawful basis for processing the data. This is usually personal data which will help inform whether or not to appoint someone. However, there will be additional considerations when collecting sensitive personal data, such as about criminal convictions.
•Employers should provide candidates with a privacy notice before collecting personal data outlining how and why their data will be collected, used and processed.
Lying on a CV can have far-reaching consequences for both for employers and employees alike. As such, it’s wise for employers to thoroughly review their recruitment processes so they can be confident that they have an appropriate balance between taking reasonable action to verify the information provided by candidates against their data protection obligations.
Anna Bithrey is a solicitor in the employment law team at law firm