Honesty is the best policy during a job interview

By Tony Poland, LegalMatters Staff • It is not unusual to exaggerate on a résumé or in a job interview but withholding information, even if you believe it may be inconsequential, can be costly, says Toronto employment lawyer Ellen Low.   

“There is a general understanding that some people will embellish their résumé. Of course, outright lying can be problematic,” says Low, principal of Ellen Low & Co. “Obviously from an employment law perspective we are concerned about any misrepresentations made by an employee during the recruitment or the hiring process. Those could allow the employer to terminate that employee.” 

She tells LegalMattersCanada.ca that employees caught in a lie can be fired for cause, meaning they would not be entitled to severance.

“In some cases, certain conditions may even allow the employer to sue the employee for damages following false representations that are given during the course of that interview or hiring process,” says Low.

According to a recent StandOutCV survey, 55 per cent of Americans say they have lied about their personal details, skills, experience or references on their résumés at least once.

Common lies deal with work experience, job skills

More than half (50.4 per cent) of those polled admitted they had lied in a job interview. The most common lies concerned their previous work experience, job skills and education.

The survey also found Google searches for advice relating to faking résumés and job references were up an average of 48 per cent and 52 per cent respectively as job seekers sought to gain an edge in the job application process.

Low says it is important that someone applying for a job is “not inadvertently or intentionally misrepresenting themselves.”

Any misrepresentation that “goes to the root of the employment contract could result in liability by the employer,” she warns.

“Typically, to get out of a contract based on a misrepresentation made during the course of an interview, that misrepresentation must be something serious,” Low explains. “It cannot be mere puffery or a slight exaggeration. 

‘To some degree, the court will look at the intention’

“To some degree, the court will look at the intention,” she adds. “What was the purpose of the misrepresentation? Was it a misstatement of fact or was it an overstatement?  That may be slightly different than a pure misrepresentation about an academic degree, for example.”

The duty to be honest was set out by the Supreme Court of Canada in Bhasin v. Hrynew, says Low.

The court found that “contracting parties must be able to rely on a minimum standard of honesty from their contracting partner in relation to performing the contract as a reassurance that if the contract does not work out, they will have a fair opportunity to protect their interests.”

“Under this new general duty of honesty in contractual performance, parties must not lie or otherwise knowingly mislead each other about matters directly linked to the performance of the contract,” Justice Thomas Cromwell wrote on behalf of the court. “This does not impose a duty of loyalty or of disclosure or require a party to forego advantages flowing from the contract; it is a simple requirement not to lie or mislead the other party about one’s contractual performance. Recognizing a duty of honest performance flowing directly from the common law organizing principle of good faith is a modest, incremental step.” 

As an example of the importance of being upfront with a potential employer, Low pointed to a recent Quebec Court of Appeal judgment involving a man whose offer of a position with Quebec’s provincial police force was rescinded after it was learned he failed to disclose a medical condition.

Employment process included medical questionnaire

During the employment process, the man had to complete medical and pre-employment questionnaires as well as pass physical and medical tests. After receiving a promise of employment from the Sûreté du Québec, he then completed police techniques training.

It was only at the graduation ceremony that the recruitment officer learned that the man had Tourette syndrome. Although the officer was assured by the man’s instructors that the syndrome did not affect his performance, the omission was reported to the police force.

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It was discovered the man failed to declare he suffered from the syndrome in his pre-employment medical questionnaire and his file was suspended pending an investigation. It was at this time that the man also admitted that he consulted with a psychologist because of his unhealthy relationships with women. Court was told the man did not believe he needed to disclose his condition because it was not disabling.

Although doctors for the Sûreté du Québec determined the man was fit for duty, the force withdrew its agreement to hire him. They stated that he no longer met the requirements of ethics and good character needed to work as an officer.

While a Human Rights Tribunal found that some of the questions asked in the recruitment process were too broad, they ruled the refusal to hire was not discriminatory because the force’s decision was not based on the fact that the man has Tourette syndrome. Instead, the man failed to disclose his medical condition, which violated the standards required of an officer. The court of appeal agreed.

‘Plenty of opportunity to discuss his entire past medical history’

“According to the judgment, the man had plenty of opportunity to discuss his entire past medical history,” says Low, who was not involved in the case but comments generally. “Not only did he not disclose the fact that he had Tourette syndrome, because he felt it was well managed and under control, but he also omitted to divulge that he was speaking with a psychologist for three years. Seeing a psychologist itself is fine, but there was concern about someone dealing with unhealthy relationships with the women in his life.

“When you cumulatively put those together, it can certainly lead to questions about the necessary trust factor that one would have to have for a police officer.”

The case deals not only with the issue of the importance of honesty in interviews but also with an employer’s duty of accommodation, she says.

Under the Ontario Human Rights Code, job postings include reminders that accommodation for an illness or disability is available and can be provided on request, says Low. Therefore, job applicants should not be afraid to disclose an issue, she adds.

“The employer is not permitted to make decisions on the basis of an assumed disability,” says Low. “Where the employee has disclosed that they have a disability and require an accommodation, that has to be met up to a point of undue hardship.”

Some people may not necessarily be suited to the job

However, she says although employers are obligated to make accommodations for employees, there are some positions that come with bona fide occupational requirements – factors essential in performing certain tasks – and some people may not necessarily be suited to a job’s essential duties. 

Low says she wonders what would have happened if the potential police officer had disclosed his medical issues and asked for accommodation.

“It could have been a different debate,” she says. “It would have been a discussion about whether the police force could have accommodated his disability and whether the presence of that disability or illness precluded him based merely on a bona fide occupational requirement. The focus would have been more on what the employer did once they received that information.”

She advises employers to review the Ontario Human Rights Commission’s statements about interviewing and hiring decisions and ensure they have policies and procedures in place to deal with accommodations.

Employees should also be careful with the information they provide and what they choose to withhold during the hiring process, Low says.

“Honesty is the best policy,” she says.