What can you do with staff members when you discover they lied on the CVs that helped them get the job? Employment lawyer Polly Jeanneret reports

The problem
You run a popular three-star hotel. Just over a year ago, you recruited a chef for its French restaurant. On his CV, the chef claimed he had considerable pastry-chef experience as well as other skills, and had worked in a top London restaurant's pastry kitchen. However, it has recently come to light that he has only a working knowledge of pastry, which has had disastrous results for your kitchen.

Also, two weeks ago, you recruited a waiter. His job offer was "subject to satisfactory references being received by the company". He has started work already but now his references have come through. One of them is less than impressive and contains issues of underperformance, which are very concerning.

Can you dismiss the chef and the waiter?

The law
Exaggerating or falsifying a CV could amount to misconduct or even gross misconduct, depending on the circumstances.

By statute, employees have the right not to be unfairly dismissed if they have at least one year's employment. If an employee is accused of any kind of misconduct, gross or otherwise, they should be given the opportunity to have their say at a disciplinary meeting and be accompanied by either a work colleague or a trade union official.

Expert advice
The chef's dishonesty in relation to his CV means you would be entitled to dismiss him on notice under his contract, on grounds of misconduct. You could dismiss the chef without notice if it could be established that he was in fundamental breach of his contract.

However, on the facts, this would be risky. As the chef has more than a year's service, you would not be able to dismiss him without following the statutory disciplinary and dismissal procedures. This involves at least a three-step process whereby the hotel must write to the chef setting out the alleged misconduct, warning him of the fact that the hotel is contemplating disciplinary action which could result in dismissal, and inviting him to a disciplinary meeting to enable him to give his side of the story.

A meeting must then be held at which the chef would have the right to be accompanied, as outlined above, and a decision must be made. The chef would have the right to appeal against any such decision.

Although the waiter's job was offered subject to satisfactory references, the hotel has allowed him to start working, so there is an argument that the offer would no longer be seen as conditional on satisfactory references. The hotel may not be able to withdraw the offer but may have to dismiss the employee on notice (in line with the provisions of his contract).

Although the waiter is unlikely to have unfair dismissal rights because he doesn't have the requisite service, best practice would be to have a meeting with the waiter to give him the chance to put his side of the story. This would allow the hotel to see if there are any other issues that are relevant, and could avoid any possible discrimination claims - for which there is no one-year rule.

Check list

• Review the hotel's recruitment practices and procedures. The hotel needs to ensure that it can verify facts, and should be open about what verification processes it's going to undertake.
• Ensure that employees don't start work until references have been received or, if that is not practicable, reserve the right to refuse employment after receipt of unsatisfactory references, even if they are received one month after employment has started.
• Also, consider the hotel's disciplinary rules to ascertain whether this type of conduct is considered sufficiently serious to merit disciplinary action or dismissal without notice.

Beware!
It's estimated that one in three people exaggerate or falsify a part of their CV, so it's critical to have verification processes in place. It's much easier to turn down an application than to have to withdraw an offer, or actually dismiss an employee at a later stage.

Contact
Polly Jeanneret
Employment lawyer
Leisure and Hospitality Group
Charles Russell
8-10 New Fetter Lane,
London EC4A 1RS
020 7203 5208
polly.jeanneret@charlesrussell.co.uk