If an employee lies about his qualifications or employment history on a CV, can you sack him without repercussions? Solicitor Sara Khoja explains
The problem
We recently employed an accountant after going through a standard interview process. We have since had some concerns over his performance, and a director was informed that our new recruit left his previous job under a cloud and that he is not qualified.
Can we dismiss him if we discover he has lied about his departure from his previous role or his qualifications?
The law
An employee can only claim unfair dismissal if he has been employed for a continuous period of one year (unless he falls within specific exceptions). If he is dismissed in his 51st week of continuous employment, he will still have the right to claim unfair dismissal as his one-week statutory notice entitlement will extend his employment and enable him to obtain the one year of complete service.
In order to fairly dismiss an employee, an employer has to have a fair reason for dismissal and must act reasonably - this means following a fair procedure.
There are five permitted reasons for dismissal: capability or performance misconduct redundancy retirement and some other substantial reason (a catch-all category).
What constitutes a fair procedure is a matter of fact and depends on the reason for dismissal. If the reason is retirement, for example, then a specific procedure must be followed in compliance with age discrimination legislation.
In all cases, the minimum statutory dismissals procedure must be complied with by, first, putting in writing the concerns or reasons for considering termination, second, holding a meeting with the employee to discuss the situation and, third, confirming the dismissal and the reasons in writing.
Expert advice
Assuming this employee has more than a year's service with you, he should be invited to a preliminary investigative meeting to explain the situation. He can then respond with evidence of his professional qualifications and by clarifying any other points of query.
If he cannot provide an explanation, you can then progress to a disciplinary procedure by, first, setting out the alleged misconduct in writing, second, holding a disciplinary meeting (he has the right to be accompanied to this meeting by a colleague or trade union representative), and third, confirming your decision in writing. You could issue a written warning or, depending on the seriousness of the misconduct, terminate his employment.
If an employee has lied on his CV, then it is a matter of fact and degree as to whether or not this constitutes misconduct or gross misconduct. The employee's role is also paramount. A senior managerial role, or any role with control of the employer's finances, will carry fiduciary duties toward the company.
However, if an employee has successfully worked for you for a number of months or years, then it is less likely that a lie on a CV - such as stating untruthfully that he has three A‑grade A levels - will be sufficient misconduct in itself to terminate his employment.
Check list
- Take references, including one reference from the immediately previous employer.
- Ask for copies of all certificates verifying professional and educational qualifications.
- Ask for copies of the employee's passport and national insurance details - or work permit.
Beware!
While an employee can often be summarily dismissed if he has less than a year's employment, an employer must be aware that every employee (and contractor) is protected by discrimination legislation from the first day of employment. If an employee has previously worked for the business as a consultant or contractor, this time can be added to the employment period, giving the necessary year's service to claim unfair dismissal.
If there is a potential discrimination claim, then an employer would be advised to follow the minimum statutory disciplinary and dismissals procedure. A successful claim, combined with a failure to follow such a procedure, could lead to a tribunal increasing any damages awarded by 10-50%.
Contact
Sara Khoja, solicitor, Field Fisher Waterhouse
sara.khoja@ffw.com