As an employer, you must be able to rely on the accuracy of an applicant or employee's resume. An employment contract is based on mutual trust. Therefore, for many employers, the inclusion of incorrect information on a resume will be a reason to terminate employment with an employee. Examples of inaccurate information include falsely listing degrees or work experience. In most cases, providing inaccurate information on a resume will be able to lead to a legally valid dismissal. That this does not always provide a basis for a summary dismissal is evidenced by the October 6, 2020 ruling of the Hague Court of Appeal.
What was going on?
The case involved a healthcare worker who had listed on her resume that she held a VIG Level 3 diploma. This is a legally protected professional title. However, although the employee had obtained a large number of partial certificates, she had never obtained the overall diploma. Yet she had listed on her resume that she held this diploma and, according to the employer, had confirmed in the job interview that she had the required diploma. More than six months after the employee was hired, the employer only requested that she send the diploma. However, the employee could not provide the diploma to her employer, which led to a summary dismissal. The employee went to court to challenge the summary dismissal. On appeal, the court ruled on the urgent reason for the dismissal.
The judgment of the Court of Appeals
The Court of Appeal of The Hague ruled (like the district court earlier) that the employee's dismissal was not justified. The court held that the employee had incorrectly stated on her resume that she held the VIG level 3 diploma. She was not allowed to use the title VIG level 3. Although this might have provided grounds for dissolution of the employment contract, the court was of the opinion that the incorrect statement in this case did not constitute an urgent reason for immediate dismissal. In this case, there was no evidence that the employee was incompetent for the work she performed as a caregiver. In that position, she did not perform duties reserved for someone with a VIG level 3 diploma. Moreover, according to the court, she was not deficient in the care of her patients. Therefore, according to the court, there was no urgent reason for the immediate dismissal.
Thus, the court in this situation attached more value to the actual performance of the work, than to the actual diploma. This could possibly be different if work was performed that was reserved for a licensed specialist.
Finally, the court pointed out that in this case it only ruled on the wrongful mention of the VIG level 3 diploma on the resume, because the employer had only mentioned this reason for dismissal in the dismissal letter. The fact that the employee had confirmed during the job interview that she held the diploma in question and that she also failed to provide full disclosure at a later stage was not taken into account by the court in its judgment. This is because a court, when ruling on a summary dismissal, must limit itself to the reasons contained in the letter of dismissal.
Extrajudicial destruction
Early last year, the Supreme Court ruled in a judgment dated Feb. 7, 2020, that an employer can also annul the employment contract (out of court) if there is fraud on the part of the employee. That case also involved the inclusion of incorrect information on the resume, while the accuracy of that information was crucial to the employee's suitability for the position. In at least four application procedures, the employee in question had provided healthcare providers with incorrect or incomplete information about previous employers, previous positions, education, BIG (re-)registration(s), and work experience as a (directional) practitioner in the specialist mental health care.
While this ruling ensured that the employer has an additional means of applying pressure, the Supreme Court did consider that the court must be tailor-made when invoking an annulment. Since in the present case there was no evidence that the employee was incompetent, that she committed prohibited acts or otherwise harmed her clients, it is questionable whether an appeal by the employer for an extrajudicial annulment of the employment contract (instead of a summary dismissal) would have had a chance of success in this situation.
Important for practice
Although an inaccurate statement on a resume about a diploma may in many cases be sufficient to terminate an employment contract, this is not automatically sufficient basis for summary dismissal. As an employer, you are therefore well advised to request a copy of each employee's (full) diploma prior to employment. In addition, the outcome of this case might have been different if the dismissal letter had also included the other accusations. Therefore, always be as complete as possible in a resignation letter!
You can read the full ruling here.
