Dishonesty In Recruitment: What To Do When An Applicant Lies
Our guest blogger Claire Nisbet is a Senior Solicitor in the Employment and Pensions team at Maclay Murray & Spens LLP. Whilst advising employers and employees on a wide range of employment issues, Claire specialises in advising clients on contentious employment, discrimination and equal pay matters.
Claire is the Treasurer of the Scottish Discrimination Law Association and a Board Member of Graphic Enterprise Scotland, the Trade Association for Print Employers in Scotland. Since April 2015 Claire has acted as Assistant Editor and Research Assistant on the 3rd Edition of Employment Tribunal Practice in Scotland (Simon and Taggart), the only distinctly Scottish reference work of its kind.
Anything is better than lies and deceit!
― Leo Tolstoy, Anna Karenina
If an applicant lies during the recruitment process, either expressly or by omission, on their CV, job application or in other pre-employment information provided you could end up recruiting an employee you ultimately do not want or who is unsuitable for the job.
How to deal with a lying applicant will depend on the stage of the recruitment process and on the extent of the deception.
Before an offer is accepted
An offer can be withdrawn at any time before acceptance and so simply withdrawing the offer will be the easiest way of dealing with a lying applicant. It will be important to keep a record showing that the offer had not been accepted and clearly setting out the reasons for withdrawing the offer. This provides a rebuttal if the applicant subsequently alleges, for example, a discriminatory reason for withdrawal of the offer.
After an offer is accepted
Once an offer of employment has been accepted, and any conditions of the offer have been satisfied, a contract of employment will be formed. Thereafter, unless the contract allows for summary dismissal in the circumstances, normally contractual notice will have to be given to terminate. Failure to do so may be a breach of contract, for which the employee can sue either in an employment tribunal or in the civil courts.
Dismissal without notice may be justifiable where the dishonesty is significant enough to amount to a repudiatory breach on the part of the employee, entitling you to treat the conduct as a breach of trust and confidence which brings the employment relationship to an end.
Offers should be qualified to the extent that the offer may be withdrawn at any stage after acceptance, and employment, if commenced, terminated with immediate effect, if any information given during the recruitment process proves to be substantially incorrect or dishonestly provided.
Once the applicant has commenced employment
Once employed, the usual rules around unfair and wrongful dismissal will apply. Though the employee is unlikely to have two years’ service for most grounds of unfair dismissal, automatic unfair dismissal (e.g. for reasons connected with pregnancy or whistleblowing), which does not require a minimum period of service, may still be argued by the employee. You will also have to be mindful of any applicable notice periods.
Again, depending on the level of dishonesty the employer may be able to dismiss with or without notice. The dismissal should normally be treated as a conduct dismissal.
For advice or more information around any of the issues discussed please email firstname.lastname@example.org