Is there a duty on a prospective employee to disclose past misconduct?

BY ROBERT NIEMAND - JANUARY 21, 2015

An employer may decide to employ an employee based on the information that the latter has provided prior to the conclusion of the contract of employment. Often times, the employer may discover that the information was incorrect or that certain information was withheld.

Misrepresentations 

A misrepresentation is defined as the provision of incorrect information by one contractual party, which information induces the latter to conclude a contract. Misconduct may have a bearing on the employment contract if it is committed either before or after the employee commences service and may, in appropriate circumstances constitute a ground for dismissal.

The discovery by an employer that an employee was guilty of a criminal offence before commencing service has been held to justify dismissal.  Fraudulent representations made at the employee’s pre-appointment interview have been treated on the same footing.  A duty to disclose past misconduct arises where the non-disclosure of such information amounts to fraud. In this context non-disclosure is deemed fraudulent where the past misconduct renders the prospective employee unfit for the employment offered. 

Dismissal on the basis of misconduct

To justify dismissal, misconduct after the contract is concluded must generally be work-related and of such a nature as to render the employee unfit for employment in the employer’s business or to render the continuation of the employment relationship intolerable.

In light of the above, the following are recommendations for an employer:

1.             Critically assess your current application forms to ensure that all pertinent questions that are permissible are in fact asked and answered by the applicant prior to the interview.

2.             Ensure that the initial application form contains a declaration clause that confirms the accuracy and correctness of the information furnished by the applicant, which the latter must then sign.

3.             Include consent clauses to permit the employer to conduct any other verification that the employer may consider relevant to determine the trustworthiness and suitability of the applicant.

4.             If you include any disqualifying criteria they must be justifiable and you should ensure that these are indeed inherent requirements of the job and are stated as such. 

5.             Disclosures prohibited by the EEA should be avoided altogether.

6.             Employees recruited for senior posts or positions of trust must be requested to disclose formal disciplinary outcomes relating to conduct or capacity or pending/unresolved investigations on termination of employment with their previous employer.

7.             Employer should conduct a thorough reference check prior to concluding a contract of employment.

If these measures are implemented, the prerequisites are met for a fair termination of the contract of employment on the grounds of material non-disclosure, misrepresentation and or gross dishonesty.

Employers are well advised to ask questions material to the position in question prior to commencement of employment.

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