In this case, the EAT held an employer acted fairly when it dismissed an employee for deliberately failing to disclose during the recruitment process that he had previously been dismissed from a prior role for gross misconduct.
Facts
Mr Easton worked as a civil servant for many years in various departments. He had started working for the Home Office in 2002, and in 2016 was working as a Chief Immigration Officer with foreign national prisoners. On 13 June 2016, he was dismissed from that role for gross misconduct. He then had a three-month period of unemployment before he found a new role with the Department of Work and Pensions (DWP).
On 31 May 2019, while still employed by the DWP, Mr Easton applied for a role with the Border Force, which is part of the Home Office. His application was successful and he started employment with the Border Force on 6 January 2020. Shortly thereafter, Mr Easton encountered one of his managers from his previous role at the Home Office, who drew his current line manager's attention to the fact that he had previously been dismissed for gross misconduct.
The Home Office held a disciplinary investigation into allegations that Mr Easton had failed to disclose material details in his application – namely, that he had previously been dismissed by the Home Office for gross misconduct. Following the investigation and a disciplinary hearing, Mr Easton was dismissed for gross misconduct.
Mr Easton brought a claim for unfair dismissal, asserting that it was unreasonable for the Home Office to treat his failure to disclose his previous dismissal in his application as grounds for dismissal from his current role, given that the application form did not specifically request the reasons for leaving earlier employment or specific dates of employment or gaps in employment.
The employment tribunal found that Mr Easton had specifically enquired with the Home Office's HR team prior to applying for the role with the Border Force whether his previous dismissal would be a bar to re-employment, and had been informed that it would not be an automatic bar. The tribunal also found that Mr Easton understood that any dismissals from the Home Office and periods of unemployment during the last three years would be relevant and material information that the Home Office would require as part of an application. Despite this, Mr Easton had completed the "Employment History" section of the application form using years only, making no reference to his previous dismissal or the three-month gap in his employment history. He had also ticked a box on the application form confirming that his application may be rejected or he may be subject to disciplinary action if he gave false information or withheld relevant details.
Taking those factors into account, the tribunal dismissed Mr Easton's claim, holding that the investigation and disciplinary process fell within the band of reasonable responses open to the Home Office and the dismissal was fair. Mr Easton appealed.
The EAT dismissed Mr Easton's appeal. It concluded that the tribunal had asked itself the correct questions, (i.e. whether the Home Office believed Mr Easton to be guilty of misconduct by the way he had completed the "Employment History" section of the application form and, if so, whether the Home Office had reasonable grounds for that belief based on a reasonable investigation), and had come to a conclusion that was open to it on the facts.
Although not necessary to decide the appeal, the EAT provided some commentary on what is expected of job applicants when completing application forms. In the EAT's view, a request for an applicant's "Employment History" is not ambiguous. It is a request for "straightforward and basic information… of a kind which is routinely sought in job applications, the reasons for which are well known and obvious". Job applicants are under a duty to take reasonable care that their answers are accurate. Providing precise periods of employment by reference to months and years allows the employer to identify any short gaps in employment and to explore those as part of the application process if they wish. Mr Easton's failure to disclose the relevant information on his application form deprived the Home Office of the opportunity to do so.
Finally, the EAT rejected Mr Easton's suggestion that he did not need to disclose his prior dismissal because the Home Office (as his previous employer) was already aware of it. The Home Office was a large organisation that comprised many smaller organisations and a single collective corporate memory of all HR records could not be assumed. In any event, the EAT held that the fact that the Home Office could have (and ultimately did) discover the information by other means did not take away from Mr Easton's obligation not to withhold relevant information.
What does this mean for employers?
This case supports the position that the onus is on job applicants to be honest and forthcoming in the information they include in their applications, and that a deliberate failure to include relevant information may be grounds for dismissal. That said, employers who specify on their application form exactly what information they require from job applicants will have the advantage of avoiding any misunderstandings and preventing such issues from arising in the first place. Requiring applicants to state the reason for previous employments ending and to confirm on their application that they understand the potential consequences of providing false or misleading information, or withholding relevant information, will also strengthen the employer's position in the event of any dispute.
Easton v Secretary of State for the Home Department (Border Force)
