In any recruitment process, it is legitimate for employers to inquire as to the professional skills and experience of candidates for vacant positions.
In order to avoid any excess actions on the employers’ part, French employment law provides that the information requested from any candidate may only serve the purpose of assessing his/her ability to fill the position offered or his/her professional competence. French law also specifies that such information must have a direct and necessary link with the proposed position or with the assessment of the employee’s professional competence. Subject to such safeguards, the French labour code states that the candidate must reply in good faith to such request for information.
Unfortunately, and especially in a context of high unemployment and increased expectations from businesses, it is becoming more and more frequent to discover inaccuracies or even outright lies and misrepresentation in candidates’ résumés. Against this background, is an employer entitled to terminate an employee if it discovers subsequent to hiring that its employee lied during the recruitment process?
In a decision of the Supreme Court dated 25th November 2015, an employee, recruited as sales manager, lied at the time of his recruitment about the identity of his previous employer.He claimed in his resumé that he had worked for a competitor of his current employer (such competitor selling the same products as the employer) while, in reality, such competitor only took over the company in which he worked after his departure. The employee also reiterated such lie on several occasions during the recruitment process. Only a few months later, the employer discovered the truth and subsequently dismissed the employee for gross misconduct. The employee then took his case to the employment tribunal arguing in particular that his termination would have only been justified if he had lacked the necessary skills to perform his duties.
The Supreme Court upheld the decision of the Court of Appeal and held that the employee had, on three occasions, purposely led the employer to believe that he was employed by one of its competitors and that it had been proven that the presence of the employee in such company constituted a decisive factor in the employer’s decision to recruit him. Therefore, the Supreme Court considered that the employee committed an act of willful misrepresentation which entitled the employer to terminate his employment contract.
This decision is in line with previous decisions which had held that the fact for an employee to deliberately provide inaccurate information during the recruitment process could result in the termination of his/her employment if such information proved to have been a determining factor in the hiring decision. However, the scope of such decision must in any case be nuanced as the outcome of any dispute in this particular area will greatly depend on the circumstances of each case and notably on the assessment of whether or not the employee’s lie or misrepresentation could be viewed as a decisive factor in the recruitment (and the evidence thereof).