A Border Force officer who failed to include on an application form that he had been previously fired for gross misconduct by his employer was fairly dismissed.

The Employment Appeal Tribunal has ruled that the employment tribunal was entitled to find that the employer’s decision to treat the claimant’s behaviour as grounds for dismissal for gross misconduct was reasonable.

Mr Easton applied for a role at Border Force, part of the Home Office, in May 2019. He had been working for the Department for Work and Pensions since September 2016.

In a free-text box to describe his employment history, Easton stated that he had worked for the Home Office from 2002 to 2016, and at the DWP from 2016 to current. He was not more specific than the years he started and finished the periods of employment.

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He provided no indication of a three-month employment gap between his time between the two government departments, nor that he had been dismissed by the Home Office in June 2016 for gross misconduct.

As a result of the 2016 dismissal, the claimant brought employment tribunal claims, which were resolved between the parties in a settlement agreement.

This did not include any agreement between the parties to alter the reason for his departure from the Home Office from the then-recorded reason of “gross misconduct”.

Easton re-joined the Home Office as part of Border Force in January 2020. In May 2020, after management became aware that he had been previously dismissed for gross misconduct involving inappropriate behaviour towards females and temper issues, a disciplinary investigation was launched.

His previous manager confirmed his 2016 dismissal resulted in a settlement and that Easton had received a “significant sum, not because the decision to dismiss was wrong but because managers had not followed the [Disability Discrimination Act] procedure”.

Failure to disclose information

The Home Office investigation looked at whether he failed to disclose his previous dismissal and an underlying medical condition which could impact his ability to carry out the role.

After what the employment tribunal deemed to be a “thorough” disciplinary investigation, Easton was dismissed. He appealed that decision and that too was dismissed.

At the employment tribunal in May 2023, the panel judge held that the investigation, disciplinary and appeal process – and the decisions made because of them – all fell within a band of reasonable responses open to the Home Office and that the dismissal was fair.

The tribunal judgment also found that the claimant had ticked a box on his job application to agree with the following declaration: “I understand my application may be rejected or I may be subject to disciplinary action if I’ve given false information or withheld relevant details.”

Appeal tribunal

The claimant appealed against the tribunal’s decision in August 2023 and this was permitted on one ground to proceed to a full EAT hearing, namely that the application form lacked guidance and featured a simple, empty box for employment history; it did not specify a requirement to include unemployment dates or reasons for leaving employers.

The appellant added that the judge’s failure to recognise the ambiguous application form was a legal error and that in Cheltenham Borough Council v Laird (2009) the court emphasised that “it is the employer’s responsibility to ensure application forms are clear and unequivocal, rather than expecting candidates to compensate for their ambiguity”.

It should not be assumed that there is a single collective corporate memory of all HR records” – Sarah Crowther KC, Deputy High Court Judge

Easton submitted that the absence of specific direction or guidance in the form renders it ambiguous and that therefore it was “entirely at the discretion of the candidate as to what information they provide and what they consider relevant” and that in the circumstances he completed the application form to the best of his ability and knowledge and had not wilfully withheld information.

History ‘discoverable’

He also relied on what Sarah Crowther KC, Deputy High Court Judge, described as “somewhat unusual facts of his case”, namely that the Home Office “was ‘aware’ of the circumstances because it was the respondent that had employed (and dismissed) him previously”.

He highlighted the fact that he had been given the same employee number and email address as he had previously used as evidence of continuity and that his history was discoverable. By implication, he argued that there was no duty on him to make disclosure to the Home Office because that information was available to them.

In her EAT judgment, Judge Crowther said: “The claimant may be right that not all employers would have reached the same conclusion as the respondent did. But his arguments that the omissions were genuine errors or oversights, or that they occurred in the honest belief that the information was not needed or sought by the application process, or that the conduct was not of such seriousness as to warrant dismissal, were all aired in the disciplinary process and the tribunal considered carefully the respondent’s approach to them all.

“It was not the tribunal’s role to go behind those decisions. The tribunal’s role was to scrutinise whether the process and the decisions were within a band of reasonable responses. That is exactly what it did. That, in my judgment, is sufficient to dispose of the appeal.”

‘Collective corporate memory’

She added: “As to the suggestion that the claimant need not have disclosed the relevant information, because the respondent was aware of his dismissal, it does not assist [his] case.

“First, I accept the respondent’s point that it is a large organisation which is effectively an ‘umbrella’ for various smaller organisations and that it should not be assumed that there is a single collective corporate memory of all HR records, especially in a large recruitment exercise where some tasks have been outsourced.

“Secondly, the fact that the respondent might have found out by other means (and did ultimately do so) does not take away from the claimant’s obligations under his declaration in the application form not to withhold relevant information. The failure to disclose deprived the respondent of the opportunity of exploring the issue at the interview stage and forming its own judgment as to whether employment should be offered considering the full and true facts.”

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