Acts of dishonesty are usually clear for all to see but an employee lying by omission can be harder for employers to identify.
Easton v Secretary of State for the Home Department (Border Force)
In Easton v Secretary of State for the Home Department (Border Force), an employee applied for a job using an application form that included a free-text box for ‘Employment History’. On the form he listed his work history but omitted a three-month gap that occurred after he’d been dismissed for gross misconduct from another job. He didn’t mention the dismissal or the gap during his interview.
After he was hired, his employer discovered his previous dismissal and lack of disclosure and dismissed him for gross misconduct.
Employment tribunal rejects unfair dismissal claim
The employee brought an unfair dismissal claim. The Employment Tribunal held that the dismissal was fair. The employer had reasonably concluded, after investigation, that they had been lied to. The employee had deliberately failed to disclose his previous dismissal and unemployment period.
The employee appealed, arguing that the Tribunal had not applied sufficient weight to the fact he was being punished for failing to provide information which had not been specifically requested on the form.
The Employment Appeal Tribunal dismissed his appeal. In their view, the ‘Employment History’ section of the form required a full and transparent account, including any gaps. It was reasonable to conclude that he had tried to deliberately conceal the gap.
The outcome
This recent case highlights that, provided that the employer forms a ‘reasonable’ view on the evidence, a dismissal can be fair. The test of fairness in misconduct cases is that the employer holds a reasonable belief following a reasonable investigation that the employee has committed an act of gross misconduct. There does not need to be irrefutable proof. Decision-makers are therefore able to make findings of fact based on the evidence before them. The fact that the employee tried to justify his omission doesn’t mean that the employer is required to accept it.
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