If you get a job with a fake CV, do you have to pay the wages back when you get caught?

The Latin phrase “curriculum vitae” translates as “course of life”, but with the apparently increasing prevalence of CV fraud, there are some cases where a better translation would be “course of lies”.  News websites are awash with surveys about the number of people who have apparently engaged in CV fraud, although given that many of the surveys appear to be commissioned by people trying to sell you services to combat CV fraud, the Mandy Rice-Davies Rule applies – they would say that, wouldn’t they?

A recent case from the UK Supreme Court raises the interesting question about whether a person who obtains a job with a fake CV, and is subsequently found out, is required to pay back all the wages under the UK legislation concerning disgorgement of the proceeds of crime.  In 2004, one Mr Andrewes applied for a job as the Chief Executive Officer of a hospice.  The job description indicated that senior management experience was “essential”, but Mr Andrewes was not deterred by his lack of senior management experience – he simply invented some (and awarded himself a couple of degrees which he had not earned while he was at it).  The old joke says that you should ask for a higher salary if you have no experience (because a job is much more like hard work when you have no idea what you are doing). Perhaps that is an approach that should have commended itself to Mr Andrewes, but he chose a different path.

His employment continued until 2015 when the truth emerged, and in the meantime, his annual performance reviews were “regularly appraised as either strong or outstanding”.  In addition to the CEO role, Mr Andrewes also applied for two remunerated positions with separate NHS trusts.  “Honesty” and “integrity” were described as being essential requirements for these positions (which might have been a little bit difficult for Mr Andrewes, given that he relied on the same fake CV) but a review of his performance in one of those roles, completed approximately a month before the truth emerged, “gave a glowing account of his skills in all areas”.

When the truth was discovered and Mr Andrewes was dismissed, he was charged with (and pleaded guilty to) offences in the nature of obtaining financial advantage by deception.  The question was then whether (in addition to a two-year jail sentence) an order should be made under proceeds of crime legislation requiring Mr Andrewes to pay back some or all of the wages.

The total amount of wages for all three positions (after tax and national insurance contributions) was £643,602.91.  However, the “available amount” (using a formula in the UK legislation) was £96,737.24.  In the first instance decision, the Recorder seems to have adopted the approach that as the “available amount” was about 15% of the total, that seemed like reasonable compensation, so an order for the full available amount was made.

The Court of Appeal overturned the Recorder’s decision and found that no compensation order should be made.  Although the Court of Appeal noted that CV fraud is not a victimless crime (because Mr Andrewes’ lies had deprived others of the opportunity to hold the positions which he held, and the hospice and NHS trusts would likely to suffer reputational damage, including the possible loss of donations, when his fraud came to light).  However, the Court of Appeal held that the purpose of proceeds of crime legislation was to provide restoration, and Mr Andrewes had already given restoration by providing his services as an employee.  In particular, the Court of Appeal relied upon the fact that it was lawful for Mr Andrewes to provide the services that he did, and distinguished his case from a person claiming to be a surgeon who was not lawfully entitled to perform surgery work.

The Supreme Court agreed with the Court of Appeal that unlawful work by a person not possessing the necessary qualifications (whether as “surgeon or airline pilot or HGV driver”) could have “no value that the law should recognise as valid”.  In such a case, full disgorgement of earnings may well be available.  However, that was not the case here.  The Supreme Court disagreed with the Court of Appeal that no compensation order should be made – the approach which the Supreme Court adopted was to look at the uplift between Mr Andrewes’ salary in the the position immediately before employment at the hospice, and his CEO salary, which was 38%.  Accordingly, the Supreme Court (accepting that this was “a pragmatic broad-brush approach”) made a compensation order for £244,569, being 38% of the remuneration earned by Mr Andrewes over the total period.

Although this case was a criminal compensation case, similar principles are likely to arise in civil cases.  In 2014, an employer in Western Australia attempted to recover damages from an employee hired on the basis of what the WA Supreme Court described as a “padded” CV.  Noting that the employer’s claim for repayment of all the employee’s wages could not restore to the employee thew services which she had provided, the Court memorably said:

“here it is simply not possible to ‘mop up all the spilt milk’ from whatever contractual relationship subsisted between April and September 2012, put it back in the milk bottle, and then to assume it never left the bottle”.

So, although an employer discovering CV fraud may feel that they have been unjustly milked by the fraudulent employee, the mopping up exercise is likely to require careful consideration.  The lesson for employers is that the employer won’t necessarily get back what has been put in (unless the employee has lied about an essential qualification) – the wages of sin may be, simply, death, but the wages of the sin of CV fraud are likely to considerably more complicated.

For more on our employment law and work health and safety law capabilities, contact Leonard Lozina or Angus Macinnis

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August 24
Employment Law