While none of the best employment lawyers in London would ever suggest or sanction the provision of false references by a prospective job applicant, one has to have a certain amount of admiration (whether misplaced or otherwise) for the would-be Captain of a commercial freight airline who gave false references, effectively asking his prospective employer to contact Jabba the Hutt to verify his experience. But what are the remedies in this situation for an employer who, perhaps late in the day, discovers that such a deception has been practised (whether in such an imaginative way or not)? A lesson not just for job applicants but also for recruiting managers, the Employment Tribunal dealt sharply with one Mr Francis-McGann in a recent case which offers interesting reading for UK employment lawyers (even those who have never watched Star Wars!)
The facts in Francis-McGann v West Atlantic UK Ltd
Many of the top employment lawyers in London will have come across cases with far more complex facts, but perhaps it is the simplicity of this case that will make it memorable. Mr Francis-McGann was a qualified pilot who had held roles as a First Officer, but never as a Captain. He applied for a Captain role with West Atlantic UK Ltd claiming that he did have previous experience at this level. He gave as his referee a Mr Desilijic Tiure. West Atlantic UK Ltd, a commercial freight airline operator, gave Mr Francis-McGann the job and trained him on the basis that he had previously held Captain roles. Crucially, West Atlantic UK Ltd had not taken up the reference before offering Mr Francis-McGann the position. Had they done so, they might have discovered that the reference was false, and that he did not have the experience claimed. Someone might also have twigged that Desilijic Tiure is another name for Star Wars ‘baddy’ Jabba the Hutt. As it was, he did not receive appropriate training as the result of his lie, and although no one was in fact injured before the deceptions – both the lie in respect of qualifications and the provision of false references – were discovered, the consequences could have been very serious.
When West Atlantic UK Ltd did discover what had happened, they investigated with Mr Francis-McGann. Although minded to dismiss him, as they were entitled to do, for gross misconduct, the employer offered him the option of resigning with immediate effect – an option he decided to take. However, having resigned, he then brought a tribunal claim for 3 months’ unpaid notice. The employer, perhaps unsurprisingly, counter-claimed for the costs of the training it had given Mr Francis-McGann, in accordance with an agreement he had signed when commencing in post.
The decision of the Employment Tribunal
It should come as no surprise that the Employment Tribunal dismissed the claim and allowed the counter-claim. In respect of the claim for notice by the former employee, the Employment Tribunal noted that his actions fell well within the employer’s definition of gross misconduct, and as a result, he was liable to be summarily dismissed (i.e. dismissed without notice). The Tribunal noted that the option to resign was only given to the employee on the basis that he did so ‘with immediate effect’ – and so waived his entitlement to a notice period. Otherwise he would have been dismissed without notice. Even under the contract of employment, Mr Francis-McGann was only entitled to 1 week’s notice – so there was no entitlement to the 3 months’ notice claimed.
Having dismissed the claim, the Employment Tribunal went on to consider the counter-claim. It found that the employer’s requirement that pilots should repay their training costs if they left their employment within 6 months, and after the 6 months, to repay at a tapering rate, was fair and reasonable.
Lessons for employers from the case
It’s not usually possible to use ‘the force’ to check references and identify if false references have been supplied or false information provided. If nothing else, this case serves as a useful reminder that employers should always take up references before confirming the offer of a role, and certainly before starting someone in post. If there is a delay in receiving a reference, this should be followed up. Any suspicions about a reference should be investigated. In this case, a simple google search on Desilijic Tiure might have prompted the employer to investigate more closely.
The case is also of interest to the many employers who set up similar repayment arrangements with staff who will receive training as part of their employment, either at the outset or perhaps during their career. Many businesses offer staff the opportunity to undertake further academic qualifications, such as MBAs and provide funding on a similar ‘tie in’ basis. An arrangement that is too onerous might be criticised as being in restraint of trade; however, in this case, the arrangement whereby full training costs were to be repaid in the case of the employee leaving within 6 months, and thereafter on a tapering basis, was found to be fair and reasonable. While the case was not about this aspect of the contract, it is worth anyone looking at employment contracts in London noting.
And for job applicants
The clear message from this case from anyone even remotely tempted to lie about experience and/or provide a false reference is – don’t! In this case, the consequences could have been more extreme than perhaps in other roles/sectors, but nevertheless, there is a fundamental duty of trust and confidence that exists between employer and employee and an employee who has achieved his or her role through deception will, in most cases, have comprehensively undermined that through lies.
It is also worth taking note in any circumstances, or any ‘tie in’ clause in the contract of employment, or any conditional arrangement relating to the repayment of training costs etc at the outset and consider what that could mean for you. If you have any concerns about the lawfulness of such a contract clause, a UK employment lawyer will be able to assist you.
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Posted on: Thursday, 11 October, 2018