Q We recently recruited a senior manager who, we have since discovered, exaggerated and even lied outright on her CV. Can we bring legal proceedings against her?
A Perhaps the first consideration should be whether you still want the employee to work for you. If not, you will almost certainly have grounds to terminate her employment – but remember to follow an appropriate procedure to minimise her chances of successfully claiming unfair dismissal.
Dismissal aside, legal proceedings against an employee in these circumstances are very rare but, in theory at least, you would be able to bring a claim for misrepresentation. But you should bear in mind that it is often not sensible to sue an individual – if you win, they may not have the money to pay your damages and costs at the end of the process.
To successfully sue for misrepresentation, the court would need to be satisfied that the employee did not have an honest belief in the information in question, and that the information was at least part of the reason you employed her.
If you were successful, the court would award damages with the aim of putting you in the position you would have been in if the contract had not been entered into. This is one of the reasons why claims like this are so unusual. Although you could argue that had you not entered into her employment contract you would not have paid her salary, there is a good chance that the court would accept the counter argument that you would have recruited an alternative candidate at a similar pay grade instead.
You would therefore only be well advised to sue the employee if you knew that she could pay your damages and costs and if you could identify a specific and substantial loss over and above salary that you wanted to recover. The recent case of Cheltenham Borough Council v Laird is an example of such a situation.
In Laird, the employee failed to disclose a history of depression and stress-related illness on a pre-employment medical questionnaire. Relations between the employer and the employee broke down over time and she began to suffer from poor mental health and eventually took ill health retirement.
The losses the employer attempted to recover were not the employee’s salary, but the cost of dealing with numerous internal disputes involving the employee and her ill health retirement. But the claim ultimately failed, because the questionnaire had been poorly drafted and the court decided that the employee’s non-disclosure did not actually amount to misrepresentation.
David Brown, associate, Simpson Millar