At the start of July, in just one of the ever stranger twists and turns taken by the UK’s main political parties this summer, Andrea Leadsom was caught in a storm of questions about the true nature of her 25-year track record in the City of London. The pressure eventually led her campaign team to publish her CV – but rather than lay the issue to bed, it prompted even more queries around the exact roles she had played at various organisations: was she a director or a deputy director; a managing director or a marketing director?
She is not the first to be accused of finessing her previous track record to benefit an application for a new role. We hear about misdemeanors that range from relatively benign claims around personal interests: expressing a passion for fitness and an addiction to triathlons which turns out to be less than completely accurate, through to lies about professional or academic qualifications (whether they were achieved at all, or the grades attained), or employment track record.
Degree fraud is more prevalent than many people realise. The Higher Education Degree Datacheck (“Hedd”) (a service employers can use to verify UK degree qualifications held by candidates) has surveyed students and graduates with results consistently showing that about a third of people exaggerate their academic credentials when they apply for jobs. Of these 11% falsely claimed to hold a degree and 40% inflated their grade.
Some high profile figures appear to have got away with a significant level of deceit: take David Geffen, Hollywood media tycoon, who famously landed a job at talent agency William Morris after lying about his qualifications. He then came in early every day for 6 months to intercept the letter that would reveal he had not, as he claimed, graduated from UCLA. He successfully blocked the letter and went on to become one of the most powerful people in Hollywood.
This is of course not the norm, and clearly it is not acceptable for employers to take on new recruits under false circumstances. But what is the legal position for employers and what can they do if a discovery of CV fraud is made?
If during the recruitment process an employer discovers that an applicant lied on their CV the employer may wish to withdraw the offer of employment. However, in such circumstances there is a risk that a disgruntled applicant may make a claim that the reason for withdrawal was unlawful e.g. the reason was discriminatory. In order to mitigate this risk, employers should keep a clear record of the reason for withdrawal and communicate that reason to the employee, so that there is evidence of the decision making process. Employers will only be able to retract an offer of employment if it is withdrawn before acceptance of the offer by the employee.
If CV fraud is uncovered during the employment relationship (or after an offer of employment has already been accepted) whether an employer can dismiss without notice will depend on whether the dishonesty is sufficiently serious to amount to gross misconduct. The severity of the dishonesty should be judged by the employer on a case by case basis.
If the employee does not have 2 years continuous service they would not be able to bring an unfair dismissal claim unless they could allege an automatically unfair reason for dismissal (for example, their employment was terminated for making a protected disclosure). Further, the employee could claim that the reason for dismissal was discriminatory (as there is no length of service requirement).
If the employee is eligible to bring an unfair dismissal claim, employers should be aware that any decision to dismiss must fall within the reasonable range of responses. This may be more difficult to show if the employee has been working competently for a long period of time and the lie has had no impact on their ability to perform their role. Reasoning should therefore be carefully considered and recorded. A fair procedure will also need to be followed.
Although one of the consequences for falsely claiming a qualification or inflating grades is that the employee loses their job, there are other more serious consequences, as stated by Hedd:
“There are a number of sections of the Fraud Act 2006 relevant to degree fraud. Under the terms of Section 2 it is an offence to make a false representation with the intention of making a personal gain, causing a loss to someone else or exposing someone else to the risk of a loss. A representation is false if it the person making it knows that it is, or might be untrue or misleading. When someone lies on an application form or CV, presents a fake certificate or transcript or alters a genuine university document and presents the information as real they have committed fraud and can be prosecuted. It could result in prison sentences of up to ten years.”
What can employers do?
In order to assist employers, Hedd has produced a tool kit (available here), endorsed by the government Department for Business Innovation and Skills, which sets out a range of advice for employers on how to spot fraudulent claims, specifically in relation to degree qualifications.
Some of the methods that can be adopted by employers are as follows:
- Carry out comprehensive background checks on candidates’ employment history, as a matter of routine. Employers should note that problematic CVs often contain discrepancies with employment dates (potentially altered to cover gaps) and job titles or salary.
- All job offers and contracts should clearly state that the offer is contingent on the verification of information given in application documents.
- Contracts of employment and the employee handbook should make clear that serious lies in the application process can be deemed ‘gross misconduct’ which can result in dismissal.
If you have any questions on the above, or would like to discuss an issue of CV fraud, please contact one of the employment team at Reed Smith LLP who would be happy to discuss this further.