Acts of dishonesty are usually clear for all to see. They do not require much in the way of forensic investigation or nuanced consideration. An employee has either lied, or they haven’t. If they have lied, the employer is then able to take a view as to the appropriate disciplinary sanction flowing from the behaviour.

Where the evidence is not so clear-cut, a recent case highlights that, provided that the employer forms a ‘reasonable’ view on the evidence, any flowing dismissal can still be fair. The test of fairness in misconduct cases is that the employee holds a reasonable belief following a reasonable investigation that the employee has committed an act of gross misconduct. There does not need to be irrefutable proof.  

In Easton v Secretary of State for the Home Department (Border Force), the Claimant applied for a job with the Respondent. The application form included a free-text box for ‘Employment History,’ where he listed only years of employment. This concealed a three-month gap after he had been dismissed for gross misconduct from another Home Office role. He did not mention the dismissal or the gap during his interview.

After he was hired, the Respondent discovered his previous dismissal and lack of disclosure. As a result, he was dismissed for gross misconduct. The Claimant brought an unfair dismissal claim.

The employment tribunal held that the dismissal was fair. The Respondent had reasonably concluded, after investigation, that the Claimant had deliberately failed to disclose his previous dismissal and unemployment period. The Claimant appealed, arguing that the Tribunal had not applied sufficient weight to the fact he was being punished for failing to provide information which had not been specifically requested on the form.

The Employment Appeal Tribunal dismissed the appeal, finding that the Respondent had been entitled to conclude that a reasonable applicant would understand that an ‘Employment History’ section required a full and transparent account, including any gaps. It was reasonable for the Respondent to conclude that the Claimant had used years of employment to deliberately conceal the gap.

Decision-makers are able to make findings of fact based on the evidence placed before them. The fact that the employee puts forward an alternative (honest) reason for their behaviour does not mean that the decision-maker is required to accept that reason.t fraud and responding swiftly to allegations can help protect businesses while maintaining a culture of trust and accountability. It will also be crucially important to place businesses on the front foot in advance of the new duty to prevent fraud which comes into effect in September.

Speak to Jon Dunkley

Jon is a Partner at Wollens and can advise you. Contact Jon via email jon.dunkley@wollens.co.uk or call 01271 341021.

You can also complete an online enquiry form. One of the Wollens team will contact you as soon as they are available.