The Supreme Court has recently handed down judgment in the case of R v Andrewes, confirming that a confiscation order of just over £96,000 could be made against an employee who lied on his CV in order to obtain a role. The case serves as a useful reminder for employers to ensure, so far as possible, they have robust recruitment processes in place to reduce the risks of hiring candidates who have been dishonest in their applications. This blog sets out practical tips for employers on how to achieve this.
What happened in R v Andrewes?
Mr Andrewes was appointed as CEO of a hospice in 2004. He obtained this role by making several false or dishonestly inflated statements about his qualifications and experience in his application. For example, he claimed he had a first degree (which was listed in the job description as an “essential” requirement) and an MBA. He also made various false or inflated claims that he had the required management experience through positions he had held.
He carried out the role until 2015, when his employment was terminated as the truth about his qualifications and experience began to emerge. During that time, he performed well in his role.
In 2017 Mr Andrewes was prosecuted, and he pled guilty to one count of obtaining a pecuniary advantage by deception and two counts of fraud. He was sentenced to two years’ imprisonment as well as a confiscation order (under section 6(5) of the Proceeds of Crime Act 2002), as the Crown Court found he had benefited from the wrongdoing. He argued that he shouldn’t have been subject to the confiscation order because he had performed valuable services and his employer received full value in exchange for the salary paid. The case made it to the Supreme Court on the question of what confiscation order would be proportionate in these circumstances.
The Supreme Court rejected Mr Andrewes’ arguments. It said the hospice had sought to employ a person of honesty and integrity, and as the hospice would not have appointed him in the first place if the truth about his qualification and experience had been known, he would be profiting from his crime if no confiscation order was made.
The Supreme Court held that it was proportionate to make a confiscation order in respect of the difference between the higher earnings received because of the fraud, (net earnings of £643,602 over the relevant period) and the lower earnings that he would have received had he not lied on his CV. The difference amounted to £244,569. On the facts of the case, the recoverable amount was £96,737.24 as this the amount Mr Andrewes had available.
Tips for employers
Although the facts of this case are relatively extreme, it is nevertheless worth asking what employers can do to reduce the risk of being deceived by a dishonest applicant. Whilst there will inevitably be some CV fraud which “slips through the cracks” from time to time, here are some practical tips for employers to avoid being caught out:
- Where possible, more than one person should be used at each stage of the recruitment process to increase the chance of picking up on signs that something is not right. This has the added benefit of reducing the risk of unconscious bias in recruitment processes. Keep a written record of what was said during the interview.
- Require that candidates provide two references, at least one of which should be a recent employer. Be proactive in following these up and ideally do so over the phone. If you identify any issues, don’t be afraid to follow those up with the candidate and/or ask for further referees. For a reminder of the dos and don’ts of writing references, see our blog here.
- Consider carrying out pre-employment screening checks with external providers.
- It can be tempting to look up job applicants on social media, but be aware of the associated legal risks in doing so. Reviewing someone’s LinkedIn profile and other work-related online profiles (for example, on their current company’s website) can be a helpful way to ensure there are no inconsistencies between what they have said during the recruitment process and their online profile. Candidates should be informed in advance that social media may be accessed as part of the recruitment process and consent obtained. If there are any inconsistencies, ensure you follow up on them, both with the candidate and with their referees. It is advisable to avoid straying onto someone’s personal social media pages, particularly ensuring you don’t take into account information which could lead to judgements being made based on protected characteristics. For more information, see our blog Navigating tricky issues in recruitment, as well as guidance by Acas.
- Ensure that both offers and contracts of employment are made conditional on references, any necessary security checks and satisfactory evidence of qualifications and experience. When an employee begins their role, ensure they provide you with that evidence (for example, degree or qualification certificates).
- Use the probationary period properly. If there are warning signs at an early stage that someone might not have been truthful about their experience or qualifications during the recruitment process, ensure you investigate during the probationary period and think carefully about whether they should pass it.
- Lying on a CV can potentially amount to gross misconduct and breach of contract (as well as a criminal offence, as Mr Andrewes discovered). However, particularly where an employee has over two years’ service, it is important that a fair procedure is followed in accordance with your usual disciplinary policy.
If you require further information about anything covered in this blog, please contact Rosanna Gregory, or your usual contact at the firm on +44 (0)20 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, September 2022