With a plot line straight out of a well known legal drama, the recent case of R v Andrewes is an interesting read for employers and HR practitioners in the Channel Islands. A few (lawyers') caveats at the outset: this is an English decision relating to the prosecution of an individual for 'CV Fraud' and the subsequent confiscation of the proceeds of that crime.
CV Fraud is where an individual lies about their experience or qualifications in order to obtain a job, and thereby a pecuniary advantage (ie a higher salary) to which they were not entitled. That is what happened with Mr Andrewes, who lied about his experience and qualifications. He was appointed as the CEO of a charity in 2004 until the truth was uncovered in 2015. It also appears that he performed the job well.
Mr Andrewes pleaded guilty to CV Fraud and this case was about whether to confiscate his whole salary for the 11 years (£643,602.91), none of it, or a proportion representing his benefit.
The Supreme Court held that a confiscation order was appropriate, but importantly, not the full amount. This was on the basis that the charity had actually benefitted from some of Mr Andrewes' work during this period. Confiscating the full salary would therefore be a double deduction. So they confiscated the balance between what he would have earned without lying and did earn, which was £244,568.
The position would have been different had the role required certain qualifications or licences, such as lawyers, accountants or certain financial services roles. If there was CV Fraud for one of those roles, think the aforementioned legal drama, the entire salary would have been illegal and the whole sum would be at risk of confiscation/repayment.
Whilst these were criminal proceedings, it is likely that any civil recovery would follow a similar approach.
Below are the takeaways for Channel Islands businesses:
1) proof of qualifications must remain an essential part of any onboarding process, and original copies or certified copies should be obtained and reviewed;
2) contracts of employment should make it clear what qualifications are required and that failure to have / maintain these will lead to summary dismissal; and
3) the amount of damages that can be claimed will depend on whether the individual was illegally performing the role. If so, you can argue for repayment of the full salary. If not, then a proportionate recovery is more likely.
Say, for example, a person is appointed to a job as a surgeon or airline pilot or HGV driver because he or she has lied in the job application about having the necessary qualifications or licence to be appointed to that job. In that situation, the performance of the services by that person would constitute a criminal offence and it would not be disproportionate to confiscate the full net earnings because the performance of those services has no value that the law should recognise as valid.