In a recent case heard by the Employment Appeal Tribunal, an employee applied for a job as an immigration officer via the UK Border Force’s standard application form, which included a box for outlining the applicant’s employment history. In the box on the form, he listed only the years of his employment but failed to include a three-month gap after he had been dismissed for gross misconduct from another Home Office role. After completing the form, he ticked a box on the application form agreeing that he understood that he may be subject to disciplinary action if giving false information or withholding relevant details. He did not mention the dismissal or the gap in his employment history during his interview.
After he was hired, his employer discovered his previous dismissal which he had failed to disclose. As a result, he was dismissed for gross misconduct. The employee brought an unfair dismissal claim.
The employment tribunal held that the dismissal was fair. It found that the employer had reasonably concluded, after investigation, that the employee had deliberately failed to disclose his previous dismissal and unemployment period. The employee appealed, arguing that the employment tribunal had not applied sufficient weight to the fact he was being punished for failing to provide information which had not been specifically requested to provide at any point.
The Employment Appeal Tribunal dismissed the appeal in the employer’s favour, finding that the employer had been entitled to conclude that a reasonable job applicant would understand that an ‘employment history’ section on a job application form required a full and transparent account, including any gaps in their employment history. The Employment Appeal Tribunal ruled that the employment tribunal had been entitled to find the dismissal due to the employee’s dishonesty in the application process was fair.
Given the nature of the role and the circumstances of the case, it is unsurprising that the employer treated the employee’s deliberate non-disclosure as dishonesty which warranted dismissal for gross misconduct. However, whether or not it is fair to dismiss due to serious dishonesty or other misconduct will always depend on the specific circumstances of the case and any potential mitigating factors.
FSB members should seek advice via the FSB legal advice line prior to dismissing any employee.