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The following is the text spoken by OUT-LAW journalist Matthew Magee.
Hello and welcome to OUT-LAW Radio, the Podcast that hopes to keep you up to date with all the best and latest news and features from the world of technology law.
My name is Matthew Magee, and this week in an Employment Law special we ask: what can companies do when they find out their employees mislead them when applying for jobs?
But first, the news:-
NASA hacker given judicial review over extradition and man criticised in his own blog comment section can't sue for defamation.
NASA hacker Gary McKinnon has been granted a judicial review of his case because no UK Court had yet given enough consideration to the fact that he suffers from Asperger's Syndrome, a form of autism.
The High Court has said that McKinnon's lawyers can present their arguments at a March hearing convened to decide whether he can appeal his extradition to the US on hacking charges.
McKinnon has admitted to hacking into NASA, US Military and Pentagon computers in 2000 and 2001, but denies US prosecutors' claims about how much damage he did. The Home Office has approved his extradition but McKinnon's Legal Team said that it had not given enough consideration to McKinnon's medical condition and the impact that extradition or imprisonment could have on him. His lawyers said he would be likely to become suicidal if taken away from his family and familiar surroundings.
A man who was criticised in the comments section of his own blog cannot sue for defamation because he did not delete the comment when he discovered it, the High Court has said. The Court said that the man consented to the comment's publication.
Christopher Carrie is the author of a self published book in which he claims to have been sexually abused by the son of writer JRR Tolkien, Father John Tolkien. John Tolkien, who was a priest, died in 2003.
The Court heard that JRR Tolkien's great grandson Royd Tolkien had posted a comment on the site operated by Carrie claiming that Carrie was a fraudster. Carrie denied the claims via his pseudonym on the site, and sued Tolkien, claiming that the remarks were defamatory. Carrie did not remove the remarks, though, even though the Court heard that he had seen them four and a half hours after they were posted. The remarks are still online. Tolkien argued that this meant Carrie consented to the publication of the comments, and the High Court agreed.
That was this week's OUT-LAW News.
We all know someone who's done it. Maybe we've even done it ourselves. The dull, wet parent enforced scout camping trip becomes an empowering leadership opportunity. The dead end sales job becomes a high pressure management role, the time dossing at college before dropping out becomes four years' studying Land Economy, with no actual mention of a degree obtained.
Yes, it's CV itis, that particular strain of revisionism that can blur the borders between history and fiction. When applying for jobs we all strive to show ourselves in the best possible light. Hijacking buzzwords and using them to reinterpret experiences that were, perhaps, less thrilling than we make them appear. But somewhere there is a line between acceptable, expected buffing up of past experiences and outright deception. Calling flipping an egg at your cousin's Bed and Breakfast one weekend catering experience to get a few shifts at a local restaurant is one thing, but the consequences can be severe when you massage qualifications and experience or miss out relevant information for jobs on which your whole career depends. Just ask Christine Laird. She was Managing Director of Cheltenham Borough Council between 2002 and 2005 and is now being sued by the Council for a million pounds because it says she lied in her job application.
The Council says that Laird has suffered from depression and was on anti-depressant medication for years, but that she filled in a form saying she was in good health and did not see herself as disabled.
The Council said that it had been misled and Laird was guilty of 'Fraudulent or Negligent misrepresentation' and 'Deceit' because she did not say that she had previously had to take time off work for depression.
It is an unusual case, but one that raises more general and difficult questions about the job applicant's obligations and what action an employer can take against a suspected liar.
We asked Employment Lawyer Simon Horsfield of Pinsent Masons, the law firm behind OUT-LAW to clear this up for us. First he explained, your obligations if you apply for a job.
Horsfield: I think, I think the key message for job applicants is that they need to complete things like pre employment, medical checks honestly because if they don't it gives an employer the potential to use that information against the employee to form the basis of a charge of gross misconduct because essentially they have lied to the employer and that puts into question the whole relationship of trust and confidence as between employer and employee. So lying on a job application form whether it is overstating qualifications or misrepresenting medical facts could put the employer in the position where the employer is able to turn around and terminate the employment.
That's what we are all meant to do when applying for a job, but not everybody is totally scrupulous, so what can employers do if they suspect a worker of having been less than honest?
Horsfield: If an employer suspects that there has been some kind of dishonesty in the way that the application process has worked then assuming that the individual is their employee by this time they would be perfectly entitled to launch an investigation into that suspected misconduct, interview the employee to find out their version of events and if there is sufficient concern after that investigation then they can start disciplinary proceedings and if at the end of that process they hold an honest and genuine belief that the employee has been dishonest then they will be entitled to terminate that employment on the grounds of gross misconduct.
It is far from the case, though, that employers should just try to fire anyone who has lied. Whatever action an employer takes has to be proportionate to the dishonesty. All lies are not created equal, and the organisation has to be sensitive to that.
Horsfield: They have to consider whether dismissal is an appropriate sanction to level in the circumstances. It's always difficult to know where to draw the line but overstating qualifications to the extent where somebody is suggesting they have a professional qualification they don't have would be a very clear case of gross misconduct but somebody maybe just tickling up one of their GCSE results when actually they've gone beyond that and have got A levels or degree level qualifications may well not be something that an employer would feel warranted dismissal. The question the employer's got to have in their mind at all times is dismissal an appropriate sanction in this case?
Medical details, such as those involved in Cheltenham council's case, are always difficult. They are further complicated by the fact that employers will often take a policy decision not to press candidates on their medical details so that they can take advantage of an employment law exemption for taking account of disabilities that is only available if the potential employer has no idea that someone has a disability.
Horsfield: What makes it hard is deciding whether or not to ask the question in the first place. As soon as you as an employer are put on notice that there is a disability then your duty is triggered, and of course if you hadn't asked the question and the person had given no grounds to put you on notice that there was a disability when you were interviewing them then you could quite happily turn round and point to completely non-discriminatory reasons for refusing to give them a job. But if on their application form they've ticked a box to say that they're disabled you're on notice of it, the inference may well be that the reason you've then turned them down for the job is that they're disabled and it's then incumbent on the employer to point to other, more compelling reasons why they've turned that individual down.
The stakes in Cheltenham council's case are high. It is looking for a return of the £175,000 it paid for cover for laird for when she was off sick, plus legal costs from previous court cases plus the cost of her £450,000 ill-health pension.
The council is taking an unusual approach in its action against laird, though. Its case is based on saying that it might have behaved differently had it known about Laird's depression. But in doing so it might find itself falling foul of disability legislation. Horsfield identifies the tricky web of overlapping laws.
Horsfield: I think there could be very serious difficulties for the local authority. The problem is that this alleged misrepresentation relates to this woman allegedly concealing depression. Depression itself is capable of amounting to a disability. Had this woman disclosed her depression then it seems to me it wouldn't automatically to have been open to the local authority to refuse to employ her just because she suffered from depression. That would have given rise to a disability discrimination claim. It seems to me that it's going to be very difficult for the Council to turn round and say that they would not have entered into this contract just because this woman is depressed, and to do so I think they're treading a very fine line between saying we would automatically have discriminated against this woman and not employed her.
Cheltenham's case is far from run of the mill, but it does highlight the minefield that employers can face when they think job applicants have been less than frank with them.
That's all we have time for this week, thanks for listening.
Why not get in touch with OUT-LAW Radio? Do you know of a technology law story? We'd love to hear from you on radio@out-law.com. Make sure you tune in next week; for now, goodbye.