Lies, damn lies and job application CVs

Research by the Risk Advisory Group showed that one in five CVs contained significant lies about the candidate’s qualifications and experience. Employment lawyer Lorraine Sansom explores what an employer can do when he discovers too late that his latest recruit is a bankrupt, has a criminal record or has lied about his past.

Failure to declare an unpalatable truth when applying for a job would be of breach of trust that could prove grounds for dismissal. This would be relatively straightforward if the deceit is discovered in the first year of employment as the employee would have no statutory right to make a claim of Unfair Dismissal to an employment tribunal.

Cases that come to light after the first year may be more complicated. They will depend on the individual circumstances and the outcome may vary depending on the precise facts. If the candidate has simply put a fine gloss on his qualifications and achievements and is performing adequately in his job then it might be difficult to dismiss him.

If the deceit is more serious then the employer will be in his rights to take disciplinary action as laid down in the Statutory Dismissal Procedures 2004.

The first thing to do is to make sure you can prove that the deception took place. This could be done by consulting former employers on issues to do with claims about experience or senior positions held, or consulting court records for matters to do with convictions, bankruptcies and county court judgments.

Once the deceit is established it is important to follow the three-step statutory procedures by writing to the employee outlining the nature of the problem and inviting him to a meeting to put his side. Whether it is then permissible for the employer to move on to full dismissal will depend on the facts of each case and the explanation given by the employee.

For example, a conviction for drink driving five years ago might not be strong grounds for dismissing a person who has since had an exemplary record, especially if his job does not involve driving. On the other hand, convictions for theft might be far more serious, especially where the employee may come into contact with money or valuable items belonging to the firm or its customers.

Once the employee is dismissed he then has the right to appeal to the employer and may eventually elect to take the case to an employment tribunal. As always the employer that follows careful, documented procedures that expressly permit action in the event of misrepresentation will be in a better position to take action.

Lorraine Sansom is a Partner in the Employment Law Department at Andersons Solicitors in Nottingham, he can be contacted on 0115 947 0641 or email info@andersonssolicitors.co.uk

We produce FREE monthly electronic newsletters including; Private Individual, Business and Employment Law. You can register for your copy online from our website
www.andersonssolicitors.co.uk or e-mail Carly Williams at cwilliams@andersonssolicitors.co.uk.

Welcome to the age-free workplace

The world of work has suddenly become an age-free zone.

The ‘old boy’ in accounts has disappeared along with the ‘young girl’ on the switchboard. Both have been replaced by ‘ageless’ employees whose merit is determined purely by their ability without any reference to their birth certificate.

They can’t be judged by their age in the same way that they can’t be judged by their race, sex or religion.

At least that is what has happened in firms who have taken on board the sweeping changes heralded by the age discrimination laws that came into effect on October 1st.
The regulations have been described as the most fundamental change to employment law in this country for a generation. That being the case, it’s hardly surprising that the changes have already attracted widespread publicity.

In spite of this, however, some firms still haven’t caught up with the full implications of the regulations. Unfortunately for them, ignorance is far from bliss where age regulations are concerned.

Breaches can carry unlimited fines so any mistakes could prove costly. Any firm that hasn’t already sought advice on putting compliance procedures in place should seek legal advice as soon as possible. In the meantime, it may be useful to recap on some of the main changes that now affect every aspect of employment from recruitment through to promotions and all the way on to retirement.

Recruitment
Firms won’t be able to specify age limits such as ‘under 25’ when recruiting new staff. Adverts such ‘bright, energetic, dynamic’ which imply a preferred age group will also be unacceptable. This cuts both way with the regulations offering equal protection to younger applicants. It will be unlawful, for example, to discriminate against young people by setting arbitrary conditions such as insisting on at least ten years experience – a condition which by definition, people in their 20s would be unable to meet.

However, employers do not have to recruit people who are within six months of retirement age.

At work

It will be unlawful to discriminate against any employee on the grounds of age. Age cannot be used as a basis for deciding on levels of pay or benefits. Benefits based on
five year’s service must be seen to recognise experience or reward loyalty.
The national minimum wage bands will still apply.

Most of the elements relating to occupational pension schemes will be exempted. There are some exceptions so it would be wise to seek advice before making lasting decisions that could later prove costly.

There is no upper age limit at which employees can claim unfair dismissal and redundancies cannot be based on age or length of service. The simple process of last in first out can no longer apply.

Promotions
You cannot ignore someone for promotion simply because you consider them to be too young or too old. There has to be other objective reasons. The same applies to training, so you cannot overlook someone simply because you feel they are too old to learn new skills or won’t be around long enough to make the investment worthwhile.

Retirement
The national default retirement age will be 65. Employers can oblige employees to retire at that age but it will be unlawful to oblige workers to leave before then.

There is now a set process for handling retirements that must be followed. The employer must write to employees at least six months before their expected retirement date informing them that they have a right to request to remain at work. Such requests have to be considered but they don’t have to be granted. However, the employer must inform the employee in writing of the decision.

If the answer is no then the employer doesn’t have to give a reason but he does have to allow the employee to appeal.

It is important not to underestimate the impact that age regulations could have. There was a 40 per cent increase in tribunal cases when age legislation was introduced in the United States. In Ireland, which has also pioneered new regulations, one in five tribunal cases is now to do with age.

But it would be wrong to think the same thing is automatically going to happen here. We have the advantage of being able to learn from their experience. The lesson that emerges from other countries is that it’s not so much the regulations that cause the problem, but the unwillingness of many firms to prepare for them properly.

Firms who put the right procedures in place should have little to fear.

Sally Laughton is a Solicitor at Andersons Solicitors in Nottingham, she can be contacted on 0115 988 6736 or email slaughton@andersonssolicitors.co.uk

We produce FREE monthly electronic newsletters including; Private Individual, Business and Employment Law. You can register for your copy online from our website
www.andersonssolicitors.co.uk or e-mail Carly Williams at cwilliams@andersonssolicitors.co.uk.

Who will blink first if an executive plays the age card?

Firms worried about how age regulations will affect them could find the main threat coming from an unexpected source – their own senior managers.

Many law firms report getting inquiries from middle-aged executives on how the new discrimination rules could affect their position if they are dismissed or asked to stand down from positions they may have held for several years.

Sally Laughton, is a Employment Law Partner at Andersons in Nottingham, says there’s a growing feeling among many lawyers that senior managers and executives could be the surprise source of many age discrimination claims.

“There are several reasons why this should be the case. You tend to get claims from people who can afford to make them and have the initiative to follow them through. That is certainly the case with senior executives who are usually well paid and resourceful.

“They also have a lot to lose if their firm chooses to dismiss them. They may feel they are unlikely to find a new position with the same level of pay and conditions. It’s therefore in their interests to hold on to their existing position or at least get the best severance package possible.”

Laughton says it could be a case of who blinks first once the age card is played. Few firms would want the publicity that goes with being one of the first companies to face an age discrimination claim, while most executives may not want their careers to end in an acrimonious way.

The result could be a compromise with the executive being able to negotiate a better deal simply by raising the issue, even if there’s no evidence of discrimination. Some firms may even pull back from the brink and leave the executive in place.

Laughton says some companies have already woken up to the fact that they could be put in such an unenviable position and are seeking advice on how to manage such cases.

“The starting point must be to make sure procedures are in place to ensure the firm complies with age regulations. It may also lead to senior executives having to go through annual performance evaluations followed by formal dismissal procedures which have traditionally been associated primarily with less senior staff.

“This is because the firm will usually have to show that there was a valid reason not related to age for dismissing someone. In most cases, that reason will be to do with levels of performance so firms will have to be able to show they have monitored this and expressed their concerns.

“It will be necessary to build up as much evidence as possible before even approaching a senior manager about his potential dismissal.”


Sally Laughton is a Partner in the Employment Law Department at Andersons Solicitors in Nottingham, she can be contacted on 0115 947 0641 or email info@andersonssolicitors.co.uk

We produce FREE monthly electronic newsletters including; Private Individual, Business and Employment Law. You can register for your copy online from our website
www.andersonssolicitors.co.uk or e-mail Carly Williams at cwilliams@andersonssolicitors.co.uk.