What can an employer do when an employee has lied about their qualifications?

Employers who discover employees have lied on their CV, and wrongfully claimed to have necessary qualifications, have several options available to them.

These may include:

1. Cancelling the contract;
2. Dismissing the employee under any 90-day clause; or
3. Dismissing the employee for serious misconduct.

Cancel the contract:

The employer may be able to cancel the employment agreement under the Contract and Commercial Law Act 2017.

If the job was advertised as requiring certain qualifications and the employee has lied about having those, it’s likely the agreement can be cancelled.

An employer may also be able to cancel the agreement if the employment agreement contains a warranty that the employee has the necessary qualifications when in fact they don’t.

If the agreement is validly cancelled, the agreement will no longer bind either side.

However, cancellation can be procedurally difficult to get right. The employer must not have “affirmed” the contract after discovering the misrepresentation. The employer must also prove the qualifications were “essential”, or that the lack of qualifications “substantially” changes things.

Dismiss the employee under a 90-day trial:

If the employee has entered into a valid and binding 90-day trial clause, the employer will be able to dismiss the employer within the 90 days.

The employer would not need to offer the employee opportunities to come up to the required standard, and would not need to prove the representations were essential or substantial.

However, employees dismissed under the 90-day clause will still need to be paid for any relevant notice period.

Dismiss the employee for serious misconduct:

If the employee has lied about their qualifications, it’s possible this would constitute serious misconduct.

An employer may be able to dismiss an employee for this, particularly as lies about qualifications directly undermine the employee’s good faith employment obligations.

It would be important though, to investigate the allegation thoroughly, and to follow a clear and fair disciplinary procedure.

Mitigate the risk

The best protection is prevention. The risk is lessened if you conduct diligent pre-employment checks of references and qualifications. Employment agreements should also be carefully drafted to protect the employer against risk.

While there are options available to employers placed in this unfortunate situation, it is important to seek advice about the situation to ensure your response is appropriate.