Was dismissal for incomplete details in application form unfair?

EAT case provides insight for employers on structuring application form questions.

A recent case in the Employment Appeal Tribunal (EAT) gives helpful insight into the circumstances where omissions in an application form, particularly regarding the detail of employment history, may be a fair reason for dismissal.

It should be noted that qualifying length of service to bring an unfair dismissal claim was not an issue in this case. However, it is likely that unfair dismissal claims based on dismissal shortly after recruitment will become more common once the day one right in the Employment Rights Bill comes into force next year.

Case details: Easton v Secretary of State for the Home Department (Border Force)

Mr Easton had an extensive career in the civil service going back to 1992, including roles at the Home Office, the Department for Work and Pensions (DWP) and the Ministry of Defence. In June 2016 he was dismissed from the Home Office on grounds of gross misconduct. Following a three-month period of unemployment he secured a position with the DWP in September 2016.  He remained employed by DWP until he successfully applied for a role with the Border Force, where he moved in January 2020.

On his application form the Claimant listed his employment history using only the years of employment and not months or more accurate dates. He stated he worked for the Home Office from 2002 to 2016 and for DWP from 2016 onwards. By presenting his employment in this way the Claimant omitted to disclose his prior dismissal or his intervening period of unemployment. 

Early in his appointment with the Border Force, it became known that he had previously been dismissed for gross misconduct. A disciplinary investigation was launched into several allegations, including that the Claimant had failed to disclose in his application that he had previously been dismissed by the Home Office for gross misconduct.

The Claimant was subsequently dismissed on the grounds of dishonesty for failing to disclose material information during the application process. He brought several claims in  the Employment Tribunal, including unfair dismissal. His claims were all withdrawn or dismissed.  The Tribunal found that the reason why the Claimant was dismissed was for failure to disclose relevant information in respect of the fact and circumstances of his dismissal in 2016, and in seeking to conceal a period of unemployment following that dismissal. It concluded that the employer had reasonable grounds to believe that the Claimant had been dishonest in his application by omitting relevant information and therefore the dismissal was fair.

The EAT decision

The Claimant appealed his case of unfair dismissal to the EAT. He argued the application form lacked guidance and featured a simple empty box for employment history. He argued the application form was ambiguous and that it was the employer’s responsibility to ensure it is clear rather than expecting applicants to work it out for themselves.

Referring to examples, the Claimant stated that ‘a normal person would display their employment history in the way he did’ suggesting he had not wilfully or dishonestly omitted information. He also pointed out that in his view custom and practice has evolved over recent years and that candidates are less specific than they used to be in providing career and employment history; arguing that there are many reasons why applicants might have a gap in their employment history, including maternity or paternity leave, career break, or other caring responsibilities.

The Claimant’s appeal was dismissed. The EAT judge agreed with the Tribunal in finding the employer had reasonable grounds to dismiss the Claimant on grounds of dishonesty. She found the application form was not ambiguous and clearly required information which was very likely to be relied upon by the Respondent. That much is apparent from the general declaration which the Claimant signed as follows;

“I understand my application may be rejected or I may be subject to disciplinary action if I’ve given false information or withheld relevant details”

In her view this placed a high duty on the applicant to take care to include material information and to be accurate in completing the application form which could not be compared to the format accepted in a CV. It was also the Judge’s view that an applicant should have the expertise to understand what is required when asking for “Employment History” and that no detailed explanation was required. Effectively it was not “rocket science” to understand that a dismissal for gross misconduct and an ensuing period of unemployment would be a relevant detail.

This view was supported by evidence the Claimant had previously enquired of HR as to whether his dismissal would be a bar to future employment within the civil service and he was informed it was not an “automatic bar”. From this evidence the Judge found it was for the employer to determine the relevance of a previous dismissal and therefore the Claimant would have known (after making his enquiries) that the dismissal was relevant to the application.

Seeking accurate information in an application form

This case provides useful pointers for employers.

Employers may be comforted to know that an applicant should understand what is required of them when filling out a request for previous employment history in an application form and that a previous dismissal for gross misconduct and periods of unemployment may be considered relevant factors in an application form. The conclusion reached by the courts was that this requirement does not have to be spelt out because an average applicant should understand what is meant by employment history.

However, employers should note that this conclusion was reached after 4 years of litigation which will have come at a significant cost in terms of fees and management time. Therefore, it is recommended that application forms are clear and spell out exactly what information the employer requires and considers to be relevant to the post. Employers should also include a similar statement to the one above regarding potential disciplinary action if relevant information is withheld or false information given.