What can dishonesty mean in the context of a job application, and how should employers deal with it?
The Employment Appeal Tribunal (EAT) recently upheld the decision of the Employment Tribunal (ET) in the case of Easton v Secretary of State for the Home Department (Border Force), finding that an employee was fairly dismissed when he failed to include relevant and material employment history details in his application form. This constituted gross misconduct, and his dismissal was found to be within the “band of reasonable responses”.
Case background
Mr Easton worked for the Home Office from 2002 until 2016. He was dismissed on 13 June 2016 for gross misconduct involving inappropriate behaviour towards females and temper issues. This resulted in a subsequent three-month employment gap. He then started working with the Department for Work and Pensions (DWP) on 4 September 2016.
Mr Easton later applied for a role in the Border Force (part of the Home Office). Under the “Employment History” section of the application form, he presented himself as working for the Home Office from “2002 – 2016” and the DWP from “2016 to current”. Mr Easton did not divulge his dismissal or the employment gap in the application form or at the interview stage. His employment gap and dismissal were concealed by misleadingly presenting his employment history. The application form contained a checkbox whereby Mr Easton confirmed that he understood that he may be subject to disciplinary action or rejected if he provided false information or withheld relevant details.
Mr Easton re-joined the Home Office as part of the Border Force. A disciplinary investigation commenced after Mr Easton’s dismissal came to light. Following the investigation, he was dismissed for gross misconduct due to his failure to disclose relevant and material information regarding his earlier dismissal and for concealing a period of unemployment. Mr Easton unsuccessfully appealed the decision and then brought an Employment Tribunal claim.
Employment Tribunal
The ET held that Mr Easton had not been unfairly dismissed. The dismissal was fair for the potentially fair reason of misconduct, as he failed to disclose relevant and material information on his application form. The employer had behaved within the band of reasonable responses that a reasonable employer in those circumstances would have reached, especially given the nature of the organisation, Mr Easton’s role and the misconduct. The ET also held that the procedure followed was “thorough” and “more than reasonable”.
Employment Appeal Tribunal
The EAT dismissed Mr Easton’s appeal. Using years only for his employment history obscured his previous dismissal and subsequent employment gap. The ET was entitled to find that his employer had reasonable grounds to believe that the decision to present information in such a way had been dishonest.
A reasonable job applicant faced with a blank box headed “Employment History” would have understood that the information had to be presented in a way that would reveal any employment gaps. The ET found that Mr Easton understood that dismissals and unemployment in the previous three years would be relevant and material information for a job application. Significantly, Mr Easton confirmed his understanding of its relevance during cross-examination.
The EAT held that the ET took the correct approach of reviewing the employer’s process and concluding that it was open to the employer to find that Mr Easton’s decision to withhold that information was deliberate and dishonest.
Lessons for employers
Ensure you conduct thorough pre-employment checks. Job application forms should explicitly request an applicant’s full employment history, including exact dates of roles, and request any employment gaps and reasons for leaving previous roles.
Ensure you review and verify employment history. An application form should not be seen as a tick-box exercise. Employers should verify employment history and investigate any concerns before making recruitment decisions.
Correct procedure is key. A fair and thorough investigation, disciplinary and appeal process, is essential. Employers should bear this in mind before deciding to dismiss, given that the investigation will be relevant when determining whether such a decision falls within the band of reasonable responses. Employers should also ensure their procedures and decisions are consistent.
Read more:
Job applications: the truth, the whole truth, and nothing but the truth