The Employer Strikes Back.

You may recall our bulletin earlier this year regarding the pitfalls of an employer providing personal opinions in a reference. In this bulletin we look at the recent case of Mr N Francis-McGann v West Atlantic UK Limited where an employee provided false information in a reference, including the name of a Star Wars character as a referee.

To summarise the facts, Mr Francis-McGann was a pilot who applied for a Captain position at West Atlantic, a commercial freight airline operator. He was successful in his application, and commenced his role of Captain after a short period of training by West Atlantic. It was then discovered that Mr Francis-McGann had lied on his application form stating that he had been a Captain in a previous role. This was untrue, as he had only been a First Officer, and he had used a false referee to conceal this fact. This referee turned out to be a fictional movie character named Desilijic Tiure, the alternative name for Jabba the Hut from Star Wars (and bonus points for anyone who already knew that!).

West Atlantic said they may not have employed him if they knew he had no previous experience of being a Captain, or at the very least would have been required to provide him with more training. Further, if an incident occurred during one of his flights, the financial, regulatory and reputational consequences for their business could have been catastrophic. West Atlantic therefore confronted Mr Francis-McGann with their findings and offered him the opportunity to resign, which he did so with immediate effect.

Mr Francis-McGann subsequently issued an ET claim for payment of his three months’ notice pay, and West Atlantic counter-claimed to recover the costs they had incurred training him (relying on the terms of a credit agreement he had signed). The ET found that West Atlantic had been entitled to dismiss him without notice for gross misconduct, but had offered him an opportunity to avoid another dismissal on his employment record by resigning straightaway. The Judge formed a view that there was never any intention by West Atlantic to pay Mr Francis-McGann in lieu of his notice period, and that it was far more likely that he “was being disingenuous by subsequently claiming that he had a legitimate expectation that he would receive notice pay.” He was subsequently ordered to repay training costs of £4,725 to West Atlantic.

This case emphasises the need for employees to be truthful in job applications and for employers to ensure reference checking is an important part of their standard recruitment processes, making any offer of employment conditional on receipt of satisfactory references. Preferably, references should be taken up before the employee actually starts work.

ACAS has just released new guidance on the rights and obligations of parties when requesting, giving or receiving references, which is helpful for those needing a general overview of this tricky area.

The contents of this update are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this update. © Mundays LLP 2018.

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