In 2019 a Mr Easton applied for a role with the Home Office to work in the Border Force. As part of that process he was required to fill in (without guidance) a blank box headed “Employment History” which he completed with details of prior roles held and the years in which each had begun and ended. While that information was true as far as it went, Easton’s taking that approach had the side-effect of obscuring that in 2016 he had been dismissed for gross misconduct and then been unemployed for three months, both matters which he accepted in cross examination in the Tribunal that the Home Office could well regard as relevant.
As indeed it did, for on its subsequent discovery of Easton’s 2016 dismissal, the Home Office sacked him in 2020 for his alleged lack of honesty in omitting from the application form the details necessary for it to identify any gaps in his employment.
Easton brought a welter of claims against the Home Office including unfair dismissal, victimisation, retaliation for whistle-blowing, and discrimination on grounds of both age and disability. By the time he reached the Employment Appeal Tribunal earlier this month, all his other claims had been abandoned or rejected and the question under appeal had been whittled down to a single issue, though phrased in a number of different ways – (i) did the Home Office have reasonable grounds to believe that his presentation of his employment history had been a deliberate and dishonest attempt to obscure the fact and nature of his 2016 dismissal and the jobless three months? Or, put differently, (ii) had the Home Office adequately considered the possibility that Easton had completed the application form in what he genuinely believed to be an appropriate manner, bearing in mind the absence of instructions on the form as to the detail required? And overall (iii) how could the Home Office reasonably believe him to have answered the question dishonestly simply by virtue of his not providing information it had not asked for?
No-one here suggested that CVs and job application forms attract the same “utmost good faith” obligations as some insurance forms, i.e. any duty to disclose potentially relevant circumstances even if not specifically requested. So from there, the EAT moved to the question of what the form did actually ask for, or rather, what Easton should have realised it was asking for.
Despite getting rave reviews from the EAT for his advocacy skills, Easton fared less well in terms of his actual evidence, parts of which were found to have been eloquently argued but basically untrue. In particular, he advanced simultaneously a number of different and fundamentally incompatible rationales for not adding the give-away details on the form. These included IT failure, the question not being asked, his belief that the Home Office already knew about the dismissal, its being irrelevant to the recruitment anyway, and his having mentioned it at interview, which the Employment Tribunal had found that he didn’t. In the end, once Easton admitted that he had been told by the Home Office pre-application that neither the 2016 dismissal nor the subsequent period of unemployment would necessarily be fatal to his appointment but would be considered case-by-case, he was effectively doomed. He had to have understood from that point that the Home Office would want to know about such incidents, and that that was the purpose of the “Job History” box. His then completing the application form in such a way as to conceal them was enough to allow the Home Office a reasonable basis on which to conclude on a balance of probabilities that that omission was deliberate. As a result, the ET’s original decision that he had been fairly dismissed was upheld.
This case turns on its own facts to some extent, but we can still take some useful pointers from it:
- Job candidates are under no general obligation to volunteer information which is not requested.
- So if as employer you are looking for details relevant to your assessment of that individual’s suitability for your role, be specific. The EAT said that “the suggestion that it needs to be spelled out to applicants that they should provide sufficiently precise dates to permit the vacancy-holder to understand any gaps has a slight air of unreality about it”, but ignore that – if you want the date of a job change, not just the year, then say so. If you want to know about gaps in employment records, or why your candidate left his last job, or whether he has any unspent convictions, say so.
- If the application form comes back without the specific information requested, revert to the candidate and request it again. That kills off the otherwise inevitable argument that if as employer you so badly needed some information that you later sack the employee for not providing it, you shouldn’t have let them start in the first place.
- Similarly, if the candidate does provide the requested information and that generates important further questions, ask them before they arrive (particularly in regulated sectors). If the job history reveals a three month gap, for example, was that spent looking for a job, on a pilgrimage, in Broadmoor?
- To expand on that, the Home Office’s application form required Easton to tick a box to acknowledge that his application might be rejected or that he could be disciplined if he withheld “relevant details”. That tick was found relevant but not conclusive, since it left the question of what is a “relevant detail” to the job applicant. Here Easton was found to have known that earlier dismissals and periods out of work were seen as relevant, but that would not be the case every time.
- But please do keep an eye on the information you seek, since pressing a candidate for details of relevant medical conditions or disabilities can get you into significant trouble if you ask too early, and the application is then refused. In addition, ETs will be very wary about dismissals for purported dishonesty in not disclosing mental health conditions on joining and then having the cheek to seek adjustments later – they may well be sympathetic to a claimant who argues that their condition was under control at the time of the appointment and so did not justify any mention, and/or that they feared not even getting a chance to prove themselves in the job if they told the truth. It may arguably be a form of dishonesty not to disclose such a condition, but there are few good arguments open to the employer for not recruiting them as a result. It might have been entirely legitimate for the Home Office not to have appointed Easton if there had been something in his earlier dismissal or time out of work which particularly bothered it, but it will be a brave employer indeed which argues that had it known of a candidate’s health condition, and despite their passing all the other entry conditions, it would not have hired them. You wince even just thinking about the reception that would get in Tribunal.