In the recent case of Mr P Easton V Secretary of State for the Home Department (Border Force) the Employment Appeal Tribunal (EAT) considered whether it was reasonable for an employee to be dismissed for withholding information on an application form when no guidance was provided on how that form should be completed.
Background
Mr Easton originally joined the Home Office in 2002 but was dismissed in June 2016 for gross misconduct. Following three months of unemployment, he started a new role with the Department for Work and Pensions in September 2016. In 2019 he successfully applied for a new role with a different department of the Home Office, the Border Force.
The application form for the Border Force role included an empty box headed “employment history” and did not include specific instructions to specify unemployment dates or reasons for leaving employers. When completing it Mr Easton did not mention his previous dismissal for gross misconduct and laid out his employment history with reference to his years of employment only, which therefore did not reveal the three month gap in his employment history.
Mr Easton’s previous dismissal for gross misconduct came to light shortly after he started his new role. Following a disciplinary process, he was dismissed with immediate effect on the basis that he had been dishonest in his application.
Mr Easton brought a number of claims against the Home Office in the employment tribunal including a claim for unfair dismissal. All his claims were either withdrawn or were unsuccessful. In particular, the tribunal found that the decision to terminate his employment was within the band of reasonable responses open to the Home Office and his dismissal was therefore fair. Mr Easton appealed to the EAT.
Why Mr Easton’s appeal was dismissed
Only one ground of Mr Easton’s appeal was allowed to proceed to full hearing in the EAT, which was his claim that the tribunal had failed to engage with the fact that the application form lacked guidance on how to complete it.
The key reasons why this argument failed, and so why Mr Easton’s appeal was unsuccessful, were:
- The EAT judge could not see that there was anything ambiguous about the information Mr Easton was being asked to provide. The judge commented - “It was straightforward and basic information to provide, of a kind which is routinely sought in job applications, the reasons for which are well known and obvious. 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 in employment has a slight air of unreality about it.”
- Before submitting his application, Mr Easton had ticked a box to agree to the following declaration - “I understand that my application may be rejected or I may be subject to disciplinary action if I’ve given false information or withheld relevant details”. Regardless of whether there was any ambiguity in the employment history section of the form, this declaration imposed a clear obligation on Mr Easton not to withhold any relevant details and outlined the potential consequences of doing so. He accepted in cross examination that he was aware that the previous dismissal and subsequent period of unemployment were relevant facts. Failure to disclose this information deprived the Home Office of the chance to explore this at the interview stage of his recruitment and to accurately determine whether employment should have been offered to him.
- Mr Easton had enquired with the Home Office’s HR team in 2017 and 2019 as to whether his previous dismissal would affect his prospects of successfully applying for a new role. He was told that it would not be “an automatic bar to being re-employed”. The EAT said that this showed Mr Easton was aware that it was for an employer to determine whether “a previous dismissal was a factor which would preclude subsequent employment and that the information was material and relevant to a job application.”
Takeaways for employers
This will be a useful case for employers seeking to dismiss dishonest applicants. Nevertheless, employers should review their application forms and assess whether it is clear what information the applicant is required to give. This will be a particularly useful exercise as employees will no longer need to have two years’ service to bring a claim for unfair dismissal once the Employment Rights Bill comes into force next year. Employers will therefore be at risk of such claims from employees from day one of their employment. Clear guidance in job application forms is likely to strengthen the employer’s position if it is later found out that an employee withheld material facts in the recruitment process and may also deter applicants from acting dishonestly.
Azrah Ahmed