Is it just very old fashioned to require your candidates and employees to be honest with you as their employer? Is a proper degree of trust not an integral part of the employment relationship, just as your staff would expect you to be truthful with them?
After a case this month in the German Federal Labour Courts Bundesarbeitsgericht, employers here could be forgiven a degree of scepticism about matters of ethics.
Under German law, if a job applicant gives false answers to lawful questions during the recruitment process, this is generally considered to be deception and gives grounds for the employer to have the employment contract declared void. This means that the contract is deemed invalid from its start. In this particular case, a candidate lied during the recruitment process, stating – wholly contrary to the truth – that she was not severely disabled. When the employer found out, it argued that her contract was void because of that lie. In evidence, the employer declared that the employee would still have been hired despite her severe disability if she had declared it truthfully, but that it could not accept her as employee because she had lied to it. In other words, its problem was with the lie, not with the truth.
The Federal Labour Court decided in those circumstances that the attempt to invalidate the employment contract had to fail. It took the view that the untruthful denial of any severe disability had been admitted not to have affected the employer’s decision to offer and enter an employment contract. The employer had placed no reliance on that denial. The Court said that the rules allowing an employment contract to be declared invalid as a result of deceit could only apply if the deception had played some part in the employer’s decision to enter the contract in the first place.
To make matters worse, the Federal Labour Court also considered whether, if the contract could not be invalidated from the start, it could at least be terminated lawfully on the basis of the lie. It decided that a dismissal would only be legitimate if the deception continued to have some impact on the employment relationship at the time it was uncovered. A lie which has no bearing on the employment relationship would not form a safe basis for dismissal.
There will need to be more cases decided by the Court before the limits on this principle can be determined. If I tell a small lie about my age when I join my employer, for example, that should not make any difference to its decision to appoint me. However, it is at its heart still a lie and in any work environment where integrity is important (it is hard to think of many where it is not) an employer can have little confidence that a willingness to lie in relation to unimportant matters would not carry over into issues of more significance. Surely it is not the subject matter of the lie which should determine this question, but the employee’s willingness to deceive his employer at any level.
Nonetheless, the case represents the current state of the law in Germany and therefore before seeking to invalidate or terminate the contract of someone who has lied to you during the recruitment process, you need to be able to say that you would not have hired or retained him if he had told you the truth. A most unsatisfactory state of affairs for employers.
