The Business Magazine May 2024

A little white lie on a CV could be criminal – BPE Solicitors discusses a recent judgment by the Supreme Court

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Tom Lattimore and Steve Conlay from BPE’s Employment team explore CV fraud and the dangers for both employers and employees where a CV isn’t as truthful as it should be.

In today’s increasingly competitive, candidate-driven recruitment market, it is often tempting for employers to take short-cuts in the hiring process to land the “best” talent quickly and avoid losing out to competitors.

Deep inside we all know that we should undertake thorough screening checks before offering roles to candidates to ensure that those entering their business are not lying or embellishing the truth about their experience(s) and/or competencies. Sometimes this crucial step is missed, for whatever reason, with the issue not coming to light for many months or years after an individual is appointed.

So what can companies do in such circumstances? Whilst case law has shown that false information provided on a CV can be grounds for dismissal in certain circumstances, there is an extreme route employers can take, notably that under the Proceeds of Crime Act 2002 (“POCA”).

A recent case of CV Fraud (R v Andrewes)

Recently, the Supreme Court had to decide on the correct approach to take to the confiscation of income under POCA in the situation where a candidate had lied about their qualifications and as a result were employed on a large salary.

Through false information on his CV, Mr Andrewes was appointed CEO at St Margaret’s Hospice in Taunton in 2004. He also claimed further qualifications which ultimately assisted in landing him roles as director and then chair of two NHS Trusts. Perhaps surprisingly and relevant to the case, Mr Andrewes was positively appraised in his roles, and it was noted that his performance was “outstanding”.

When Mr Andrewes’ deception was discovered in 2007 and he plead guilty in court to obtaining a pecuniary advantage by deception and fraud. Consequently, the Crown sought a confiscation order of £643,602.91 which represented his full net earnings during his employment under false pretences. Mr Andrewes successfully appealed this order in the Court of Appeal, which held that no such order should be made as he had given full value for the remuneration he had received. Predictably, and to deter future cases of CV fraud, the Crown appealed.

The Supreme Court held that the correct approach would be to confiscate the difference between the higher earnings obtained due to the fraud and the lower earnings he would have obtained if there was no such fraud. This would strip him of the profit made through his deception, whilst accounting for the fact that his employers benefitted from his services. The Supreme Court noted that where the actual rendering of services would be made illegal by the fraud (e.g. a surgeon operating on patients without qualifications) it would be proportionate to confiscate the full net earnings.

Comment

Whilst CV fraud to the extent highlighted in the case above may be rare, it is commonly thought that a significant proportion of candidates lie on their CV at some stage of their careers. This can have serious implications for employers, and as shown above, employees and therefore it is worth taking the time to thoroughly review a candidate’s CV before an offer of employment contract is made to avoid difficulties down the road.

If you need advice on the recruitment process and how to avoid situations like this, contact Steve Conlay at [email protected] or call 01242 248444 or contact a member of BPE’s Employment team for practical advice.