This is a question that clients ask all the time and one to which there really is no satisfactory answer. You can see how disclosing a previous dismissal if it was for cause – gross misconduct for example, might present serious difficulties when it comes to finding a new position. In some careers and industries it is impossible to mask this, for example if you are working in an FCA regulated entity or in a school.
It’s a tricky call because obviously it is not the best message to send to an employer who is starting a new relationship with you. Quite the conundrum and one to which I do not have an adequate answer. I am routinely asked whether someone should disclose their disability when starting a new job and that too is a fraught question and one which can cause very great distress to a disabled candidate.
The case of Easton v Secretary of State for the Home Department (Border Force) strikes me as a very harsh decision of the Employment Tribunal. The tribunal held that an employee who hid a previous gross misconduct dismissal on his application was fairly dismissed when the gap on his CV was discovered after he was hired.
Mr Easton 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.
The Employment Appeal Tribunal dismissed the appeal, finding that the tribunal had adequately addressed the question of whether 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.
In this instance the likelihood of discovering his concealment was high because he had worked in another Government department. Brave is the job applicant who would declare in interview a prior dismissal for cause. I cannot tally this case with the real world because really there is very little visibility about what happened in an employee’s previous history. References are almost pointless given the risk for employers of giving a poor reference. Only in declining to give any reference does a bold employer signal that there is a history. For a job applicant the difficulty with full disclosure is obvious: in an already competitive and economically difficult market being entirely transparent is unlikely to yield a new position unless you have a very, very good explanation indeed.
