What you need to know
- Some recent high-profile instances of resume "embellishment" have brought to light the risk of misrepresentations being made during recruitment.
- There are steps employers can take to both minimise the risk of misrepresentations being made during recruitment and to protect their interests if misrepresentations are uncovered during employment.
What you need to do
- Ensure that your pre-employment screening processes are sufficiently robust.
- Consider whether your employment contracts provide you with adequate protection against employee misrepresentations, such as by including a probationary period and warranties.
- Be aware of your options for termination of employment if misrepresentations are uncovered.
Why is this an issue now?
As a number of recent high-profile matters have exposed, misrepresentations by employees during recruitment can have serious repercussions, including for the employer's reputation.
In recent international news, the potential Prime Minister of Italy faced scrutiny following reports that his resume may have contained significant embellishments, including in relation to his university education.
In Australia, an MP recently resigned from the Western Australian Parliament after a Parliamentary Committee found he had made misleading statements about his service and education history.
While these events concern elected politicians, they highlight the need for employers to minimise the risk of misrepresentations during recruitment and to protect their interests in the event that misrepresentations are later uncovered.
Conducting sufficient checks during recruitment
Potential employees may be tempted to engage in some "persuasive marketing" about their qualifications and employment history. A prudent employer will know that, sometimes, things are not what they seem – and that appropriate checks should be undertaken.
Employers should ensure that their pre-employment screening processes are robust. These processes can include:
- Comprehensive background checks, which can include the candidate's education and past employment references, criminal history, credit and financial history, health checks and medical screening, and social media and internet checks (as relevant to the employment and role). Employers should be mindful that issues of consent and privacy may arise, and the candidate's permission should be sought before certain background checks are conducted
- Requiring candidates to make disclosures about previous employment and other matters relevant to the employment and the role
- Testing the candidate's employment history, qualifications and experience in an interview. Ensure that what the candidate has put in writing corresponds with what they say in the interview and how they present; and
- If a recruitment agency is used, the employer should ensure that the agency fully understands the nature and requirements of the role, does not "oversell" the position, and keeps accurate records.
Building protections into the employment contract
The employment contract can be prepared to provide protection for the employer against misrepresentations that later come to light during the employment.
Including a probationary period in the employee's contract of employment can allow the employer to efficiently end the employment if misrepresentations are uncovered during the probationary period.
The employer can also include warranties in the employee's contract, that:
- the employee is suitably skilled and competent to work in the role
- the employee holds necessary tickets, licenses or registrations to perform the role; and
- all of the information provided by the employee about the employee's work experience and qualifications is correct.
A breach of a warranty by the employee may entitle the employer to terminate the employment and also claim damages.
Terminating employment for misrepresentation
An employee's misrepresentation during recruitment does not automatically render the employment contract void.
However, if an employee's misrepresentation comes to light during employment, the employer may be able to terminate the employee's employment:
- if the employee is not able to comply with a term of the employment contract because he or she does not have the relevant qualifications or expertise
- for misconduct due to dishonesty or fraud; or
- for breach of a warranty about the employee's skills or qualifications (if one was included in the employment contract).
Authors: Trent Sebbens, Partner; and Jessica Tuffin, Senior Associate.
