Officer dismissed unfairly for failing to disclose previous dismissal – EAT

An officer of the Border Force who did not include in his application that he was previously terminated for gross misconduct, by his employer, was dismissed fairly.

The Employment Appeal Tribunal ruled that it was reasonable for the Employment Tribunal to rule that the employer was justified in treating the claimant’s behavior as grounds for dismissal due to gross misconduct.

In May 2019, Mr Easton submitted an application for a position at Border Force (part of the Home Office). He worked for the Department for Work and Pensions (DWP) since September 2016.

Easton wrote in a text box that he worked at the Home Office between 2002 and 2016, then the DWP since 2016 until now. He did not provide any more details than the dates he began and ended his employment.

He did not mention a three-month gap in employment between his two departments nor the fact that he was dismissed from the Home Office for gross misconduct by the Home Office on June 2016.

In 2016, the claimant filed employment tribunal claims. These were settled between the parties through a settlement agreement.

The parties did not agree to change the “gross misbehavior” reason recorded at the time for his departure.

Easton rejoined the Home Office in January 2020 as part of Border Force. After management learned that Easton had previously been dismissed for gross misbehavior involving inappropriate behavior towards females and temper problems, a disciplinary inquiry was launched in May 2020.

His former manager confirmed that his dismissal in 2016 resulted a settlement. Easton received “a significant sum” not because the decision was made incorrectly, but because managers did not follow the [Disability Discrimination Act] procedures.

Failure to disclose information

The Home Office investigated whether he had failed to disclose a previous dismissal or a medical condition that could have affected his ability to perform his role.

Easton was fired after what the Employment Tribunal deemed a “thorough investigation” into his disciplinary actions. Easton appealed the decision, and it was also dismissed.

The panel judge at the May 2023 employment tribunal ruled that the Home Office was entitled to reasonable responses in the form of the investigation, disciplinary, and appeal processes, and the decisions that were made as a result. He also ruled that the dismissal had been fair.

The tribunal judgement found that the claimant ticked the box to agree to the following statement on his job application: “I understand that my application could be rejected or disciplinary action may be taken if I have given false information or withheld pertinent details.”

Appeal tribunal

The claimant appealed the tribunal’s ruling in August 2023. This was allowed on one basis to proceed to a hearing before the full EAT, namely, that the application form lacked any guidance and had a simple empty box to record employment history. It did not specify a need to include dates of unemployment or reasons for leaving an employer.

The appellant said that the judge had made a mistake by failing to recognize the ambiguous form. In Cheltenham Borough Council V Laird (2009), the court stressed that it was the employer’s duty to ensure that application forms were clear and unambiguous, and not to expect candidates to compensate for ambiguity.

Easton argued that because the form was ambiguous, it was up to the candidates to decide what information to provide and whether they considered it relevant. He also argued that he had completed the form to his best ability and knowledge.

History is ‘discoverable.’

Sarah Crowther KC Deputy High Court judge described his case as having “somewhat uncommon facts”, namely, that the Home Office was “aware” of the circumstances, because the respondent had previously employed (and fired) him.

He emphasized that the fact that the employee number and email address he previously used was the same as his current one as proof of continuity, and that it is possible to discover his history. He implied that he had no obligation to disclose information to the Home Office, as they already had it.

Judge Crowther stated in her EAT judgement: “The claimant might be right. Not all employers would’ve reached the same conclusion that the respondent made. His arguments that his omissions or oversights were honest mistakes or oversights or that they were made in an honest belief that information wasn’t needed or requested by the application process or that conduct was not serious enough to warrant dismissal were all heard in the disciplinary procedure and the tribunal carefully considered the respondent’s approach.

It was not the role of the tribunal to investigate behind these decisions. The role of the tribunal was to examine whether the process followed and the decisions made were reasonable. This is exactly what the tribunal did. “That, to my mind, is enough to dismiss the appeal.”

“Collective corporate Memory”

She said: “As for the suggestion that [the claimant] need not have disclosed relevant information because the respondent knew of his dismissal it does not help [his] case.

“First, I accept that the respondent is correct that this is a very large organisation that is an umbrella for many smaller organisations. It is not reasonable to assume that all records of HR are stored in one place, particularly when there has been a massive recruitment campaign where certain tasks were outsourced.

The fact that the respondent may have discovered the information by other means, and did so in the end, does not absolve the claimant of his obligations to disclose relevant information as stated on the application form. The failure to disclose denied the respondent the opportunity to explore the issue during the interview and form its own judgement as to whether or not employment should be offered, considering all the true facts.

Personnel Today: HR roles in local and national governments

Browse HR roles in local and national governments