The risks of not disclosing employment history to future employers

Should you tell your new employer about problems in your last role?

Whether it be a situation that arises outside of your employment including criminal sanctions, or inside the workplace including findings of misconduct, some employees may consider whether they should tell their employer about what has happened. Equally when applying for jobs, some individuals may think it is best to keep quiet if not expressly asked for certain information which they feel may jeopardise an opportunity with a prospective employer.

The recent case of Easton v Secretary of State for the Home Department (Border Force) explores this point and how an employee was held to have been fairly dismissed after failing to disclose a finding of gross misconduct on his application form.

The facts

When applying for a job with Border Force, Mr Easton provided his years of employment history on his application form but neglected to disclose a 3-month gap following his dismissal for gross misconduct whilst engaged in another Home Office role.

In addition to this he also failed to disclose that he had a serious underlying medical condition which could potentially impact on his ability to carry out the position which was being applied for. When attending the interview for the role, Mr Easton also failed to highlight either of these points.

Following his successful appointment to the role both points were of course discovered, and he  was dismissed.

Mr Easton made a claim for unfair dismissal and submitted that within the content of the application form there was no specific direction or requirement, in particular no instruction given to demonstrate how dates of past employment should be presented and therefore it was entirely at the discretion of the candidate as to what information they considered relevant.

The law

Section 94 of the Employment Rights Act 1996 (‘ERA 1996’) provides that an employee with sufficient qualifying service has the right not to be unfairly dismissed by their employer.

Section 98 ERA 1996 sets out potential fair grounds for dismissal, including conduct of the employee. It is for the employer to show that they have a fair reason for dismissal.

The tribunal, in determining a claim for unfair dismissal will consider whether or not the Respondent behaves within the band of reasonable responses open to them and whether the dismissal is reasonable in all circumstances of the case.

The decision

The Employment Tribunal held that the dismissal was fair and that following investigation the employer had reasonably concluded that Mr Easton had deliberately failed to disclose his previous dismissal.

Mr Easton appealed and the Employment Appeal Tribunal dismissed his appeal, finding that the employer had a genuine belief in his dishonesty in withholding relevant information in his job application and that such belief was a reasonable one to form having conducted a reasonable investigation in all the circumstances.

To conclude

Whilst it can be difficult to determine what information should be disclosed to an employer, it is important to note that not providing information could expose you to unnecessary risk including disciplinary proceedings and ultimately dismissal.

In this case the employer clearly had a higher requirement to scrutinise previous employment records, but deliberately withholding information in any job role could lead to a fair finding of gross misconduct.

Our team are able to assist with a range of enquiries and HR support. If you would like any support in respect of what to disclose to your employer or a potential employer, please contact us on 01983 897003.