Dismissal for Failure to Disclose Earlier Dismissal Not Unfair

The Employment Appeal Tribunal (EAT) has rejected a man’s appeal against a decision that he had not been unfairly dismissed for failing to disclose a previous dismissal and a subsequent three-month employment gap on his job application.

The man had started working for the Home Office in 2002. In 2016 he was dismissed for gross misconduct. He brought Employment Tribunal (ET) proceedings and a conciliation settlement was reached, the terms of which did not alter the basis of his dismissal. In 2019, he successfully applied for another Home Office role, as an immigration officer within the Border Force. After management learned of his previous dismissal, a disciplinary investigation was launched and he was ultimately dismissed on the basis that he had been dishonest on his application form. His appeal against that decision was rejected by his employer.

He brought an ET claim alleging that he had been unfairly dismissed. He stated that the application form had not asked for reasons for leaving previous employment, nor for periods of employment. It had simply asked for ’employment history’, with an empty box for candidates to complete as they saw fit. However, the ET found that he had understood that any dismissals from the Home Office and periods of unemployment in the previous three years would be relevant information that the Home Office would require. He had given his employment history using years only, concealing the three-month gap following his earlier dismissal.

The ET rejected his argument that it had been unreasonable for the Home Office to enquire about his earlier dismissal because this would ‘taint’ the investigation. The ET held that the investigation, disciplinary and appeal process and the resulting decisions all fell within a band of reasonable responses open to the Home Office and that his dismissal was fair. The man appealed to the EAT on the ground that the ET’s failure to recognise that the application form was ambiguous was a legal error.

In the EAT’s view, the ET had taken great care to apply the correct test and correctly scrutinise the Home Office’s decisions whilst refraining from substituting its own view of the evidence. The man’s arguments that the omissions were genuine errors, or that they arose from an honest belief that the information was not needed, or that the conduct was not of such seriousness as to warrant dismissal were all aired during the disciplinary process and the ET had carefully considered the Home Office’s approach to them. The ET’s role was to scrutinise whether the process and the decisions were within a band of reasonable responses, and that was exactly what it had done. The appeal was dismissed.

The EAT went on to find that there was nothing ambiguous about being asked to provide an employment history: it would go to the heart of the matter if there was a previous dismissal or an employment gap. It also rejected the man’s argument that he need not have disclosed the information because the Home Office was aware of his earlier dismissal, noting that the Home Office was effectively an umbrella for various smaller organisations. The EAT also regarded his argument that the failure to disclose was immaterial to the decision to employ him as misconceived.