A new employee withheld information on their application form concerning a resignation from their previous job for allegedly stealing money from the company. Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner at Mills & Reeve, advise on the best way to handle a potential dismissal.

The question:

We have a member of staff who has been working for us since August 2007. On their application form this employee did not state any previous employment. It has now come to light that they worked for a major retail chain and resigned from their position pending disciplinary action and a police investigation for allegedly stealing cash from the company’s social fund.

The position with us allows them access to cash. This information was passed to us anonymously by a reliable source and we do not have reason to doubt this information.

We know that we cannot approach the former employer without the employee’s consent, but as this allegation is quite serious we feel that we would like to contact them anyway.

My dilemma is this: As this employee has withheld this information from us, can we dismiss? We have a statement on the application form that states “withholding information relevant to this application may lead to dismissal”.

We will be holding a meeting with this person and asking them to clarify if they have had any previous employment or can offer any further information with regards to this allegation. What is the best way to approach this?

As it happens, their performance during their time with us is not entirely satisfactory so the meeting will be a performance review which we will allow them the chance to ‘come clean’.

Legal advice:

Esther Smith, partner, Thomas Eggar

As this employee has only been with you since August 2007, and they therefore have less than one year’s service, I am quite comfortable in this situation that you dismiss for the withholding of information.

The only way the employee could challenge this as an unfair dismissal, given their length of service, would be to try to argue that the dismissal was for a reason related to one of the protected rights for which you do not need to demonstrate a year’s service, such as health and safety or statutory right. In this case, there appears to be no link to anything that would give them such an argument.

If their performance has also been questionable, I would also use this as the basis for dismissal, presuming that you have evidence to support your assertion, as then if the employee does try to challenge this dismissal on some ground, you have an additional string to your bow in arguing that the dismissal was not for a protected reason.

Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information please visit Thomas Eggar.

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Martin Brewer, partner and employment law specialist, Mills & Reeve

I’m not entirely sure why this seems so difficult. This employee has less than four months’ service with you, so unless you were to dismiss for a ‘prohibited’ reason (pregnancy, asserting a statutory right, etc) or if dismissal was also an act of discrimination, you can dismiss with impunity. If, therefore, you have no trust or confidence in the employee then why not follow the statutory standard dismissal process and move to dismiss as soon as possible?

This means inviting the employee to a meeting (in writing), setting out the issue and the potential outcome of the meeting-dismissal in this case. The employee can be accompanied to the meeting by a colleague or union representative.

At the meeting, the company will say what information it has and what it is proposing to do about it, the employee will have an opportunity to have his/her say and the company can decide if it remains unsatisfied and, if so, dismiss. You will need to confirm the decision, in writing, and offer the right of appeal.

Hope that helps.

Martin Brewer can be contacted at: martin.brewer@mills-reeve.com

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