According to research by the Risk Advisory Group, more than half of CVs submitted by job applicants contain lies or inaccuracies. These range from gaps in employment history to false claims regarding qualifications and failure to mention fraud committed against previous employers. One of the areas most fraught with difficulty for potential employers is the use of false references. A recent survey jointly commissioned by The Federation of Small Businesses and a BBC1 television programme has revealed an alarming statistic about the use of fraudulent references by candidates. The results revealed that almost 1 in 5 of the 1,800 small businesses surveyed had discovered candidates who had provided them with fake references.
In October, a freight pilot who used a pseudonym for Star Wars villain Jabba the Hutt as a reference in his job application was ordered to pay back almost £5,000 in training costs after the Birmingham Employment Tribunal dismissed his claims against airline West Atlantic.
Mr Francis-McGann was working as a pilot and applied for a role as captain. He was successful, was trained by West Atlantic UK and started work in his new role as a captain. His reference, from Desilijic Tiure (a pseudonym for Jabba the Hutt), claimed that he had previously worked as an airline captain. On discovering that the reference was false, and that he was not qualified for the new role, he was dismissed.
References are a very important aspect of the recruitment process, whether for a Resistance X-wing pilot or airline captain, giving information to a potential employer to help them decide whether a job applicant is suitable. References are usually obtained by a direct request from the potential new employer to a previous employer, but as the case of Francis-McGann v West Atlantic UK Limited shows, unscrupulous employees may also seek to provide references themselves that contain false information.
It is essential for recruiters to have robust reference verification processes in place and ensure that they always verify a reference with the actual employer on whose behalf that reference is provided. This is especially the case when candidates are given responsibility for obtaining or providing references themselves and may take that opportunity to embellish or entirely doctor references.
Any candidate relying on a false reference is dishonest and potentially fraudulent, and not a candidate that any potential employer will want to hire. Providing a false reference is also almost always gross misconduct because of the dishonesty element. There is also the potentially adverse reputational impact on any recruiter that has, even inadvertently, placed a candidate on the basis of a false reference as a result of failing to carry out reliable reference checks.
Research carried out by Ipsos MORI, revealed that almost a third of those questioned admitted to lying when applying for a job. It is debateable whether or not one can infer from this a rising trend in the problem; in an increasingly competitive job market there is pressure on applicants to make themselves stand out from the crowd.
So what can employers do if they discover that one of their employees has secured a job by lying? There are two potential actions available to the employer either for breach of contract or under the law of misrepresentation:
- Breach of Contract
If the employee continues to work for the employer without revealing the truth, then they are in breach of the duty of trust and confidence which is implied in every employment contract. If the breach is ‘fundamental’, an employer can dismiss the employee immediately, without notice or compensation. An example of a fundamental breach might be lying about the class of degree obtained. However, care must be taken by the employer to make sure the breach of contract is sufficiently serious to justify such action.
Provided the original job offer was made clearly subject to satisfactory references, an employer should have good grounds for immediately terminating the employee’s contract without the need to provide contractual notice. Assuming the fraudulent or unsatisfactory reference is discovered before the employee has sufficient continuous service to gain protection against unfair dismissal, there should also be no risk of unfair dismissal claim.
To terminate an employee’s employment or withdraw an offer of employment upon receipt of an unsatisfactory or fraudulent reference in the absence of a clear statement that the offer of employment was subject to satisfactory references will leave the employer liable for breach of contract, which could result in the employer being required to pay the employee’s entire notice period entitlement.
Misrepresentation arises where an inaccurate statement of fact is made which induces the employer to enter into a contract of employment. The misrepresentation need not be the only inducement. For example, an employee who falsely claims to have a good academic record may have made other statements on their CV that are true. If the misrepresentation was a material factor in inducing the employer to offer the candidate the job, the employer may be entitled to compensation. This might include the cost of a replacement, recruitment agency fees and any training costs incurred.
Providing a fraudulent reference can also give rise to Misrepresentation. If the fraudulent reference was in fact provided by the employee’s former employer, and the former employer knew that its contents were incorrect (for example, if it described the employee in glowing terms, despite knowing the employee was in fact a poor worker), it might be possible for the business relying on the reference to pursue a claim against the provider of the reference, to recover any losses caused in relying upon the reference.
In some cases there could be criminal consequences. A job applicant who lies may be guilty of obtaining a pecuniary advantage by deception under the Theft Act 1968, which specifically includes obtaining employment.
How to protect your business
Employers are advised not to take at face value the information candidates put on their CVs. Carry out checks for those candidates short-listed for a job. There are organisations that can carry out the checks for you, or you can verify information with former employers yourself. Ask to see certificates relating to relevant qualifications. Letters to job applicants should make it clear that you attach great importance to the accuracy of the information included in a CV and stress your right to dismiss an employee who provides untrue or misleading information.