Can you lawfully dismiss someone if you later find out they've omitted important information from their job application?

How honest do you expect candidates to be about their job history? Do precise dates really matter? And what can you do if, after appointing someone, you find out they omitted important information that would have had a bearing on their suitability? These issues were considered by the Employment Appeal Tribunal in Mr P Easton v Secretary of State for the Home Department (Border Force). 

Facts

Mr Easton was dismissed from the Home Office for gross misconduct in June 2016. He then started working for the Department for Work and Pensions (DWP) in September 2016. 

In 2019, he applied for a role with Border Force, part of the Home Office. On his application, he listed his employment history by years only, showing that he worked at the Home Office from 2002 to 2016 and at the DWP from 2016. That was true as far as it went but he didn't mention his dismissal or the three month gap in his employment history. He ticked the box which said: “I understand my application may be rejected or I may be subject to disciplinary action if I've given false information or withheld relevant details.”

He was offered a role and started in January 2020. A few months later Border Force found out that he'd been dismissed from the Home Office in 2016 for gross misconduct. He was suspended and Border Force started an investigation.  

Mr Easton explained that he omitted the gap because he thought it was “irrelevant”. He was subsequently dismissed for gross misconduct on the basis that he had: 

1. Dishonestly failed to disclose the fact and circumstances of the previous dismissal 
2. Dishonestly failed to disclose a period of unemployment; and 
3. Was in breach of the civil service code, personal conduct policy and Border Force values. 

His appeal failed and he brought claims for indirect age discrimination (which he later withdrew), direct disability discrimination and unfair dismissal. 

Tribunal's decision:

Disability discrimination

Under s.6 of the Equality Act 2010, a person is disabled if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day to day activities. 

Mr Easton argued that he had a disability due to early onset dementia. However, during the investigation, disciplinary and appeal process, he referred to the impairment in the past tense and didn't indicate ongoing struggles with daily activities. Instead, he suggested his condition had improved.  

The tribunal concluded that he didn't meet the disability definition, and his discrimination claim therefore failed. 

Unfair dismissal

The tribunal found that Mr Easton's had been dismissed because of his conduct, and it was reasonable given the role, organisation and the nature of the misconduct. 

Procedurally, the tribunal found his employer acted reasonably. A thorough investigation was conducted, including reviewing Mr Easton's application form, understanding his 2016 dismissal, interviewing relevant individuals, and allowing Mr Easton to present his case and documents.

The tribunal found that it was a fair dismissal and therefore all his claims failed and Mr Easton appealed. 

Employment Appeal Tribunal decision:

He argued that the tribunal didn't consider if it was reasonable for Border Force to expect a reasonable applicant to clearly disclose employment gaps and dismissals in a blank text box labelled ‘employment history’ which didn't ask for specific dates. 

The EAT found the tribunal had correctly considered the issue and dismissed his appeal. The tribunal was satisfied that he had to have known that Border Force would want to know about any incidents in his job history and that he had completed the form in a way to conceal the fact he'd been dismissed. Accordingly, Border Force had been entitled to conclude that he'd done this deliberately.

What can employers learn from this case? 

If you want candidates to provide detailed information about their job history - make that very clear on the application form. If their application has already gone through the initial sift and you find out that they haven't provided the level of detail you need - request it again. That serves two functions: 

1. It emphasises to the candidate that this information is important and if they don't provide it you won't progress their application; and
2. If they do provide it and it highlights gaps or inconsistencies, you will be able to ask additional questions to find out more.

You may also want to specifically ask if the candidate has ever been dismissed for misconduct (gross or otherwise). Make it clear that it will not necessarily rule them out of contention, but if they get through to the interview, they should expect to face questions about this. [The tribunal accepted in this case that disclosing the fact that he had been dismissed by the Home Officer would not, necessarily, have been fatal to Mr Easton's appointment.]

Once you've decided to offer someone a job, make sure that your offer is subject to obtaining suitable references and checking the information included on their application form. Whilst this case didn't concern professional qualifications, we've written about a couple of howlers where people have been appointed to posts they were not qualified to hold. You can read about these here and here. 

This case also acts as a great example about the importance of conducting thorough investigations and reflects what a good investigation looks like. 

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