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19th September 2018

Tribunal Tale – Francis McGann v West Atlantic UK

Background

Asking for references is a fairly commonplace part of any recruitment exercise, and most employers will contact named referees either before or when an offer is being made. However, it is also becoming the norm for referees to say as little as possible in a reference, perhaps due to concerns about complaints from either the subject of the reference or the new employer.

As such, many consider references not to be worthwhile and may not waste the administrative time seeking them out.

Some employers may also wish for their employees to undertake training as part of their role, either at the outset or at some point during employment. In those circumstances, the employer way want an assurance that they can recover some of the costs associated with such training in the event that the employee resigns (or is dismissed) soon after the costs are incurred.

Training Fee Agreements (TFA) are often used for such purposes, which are essentially contracts between the employer and employee that outline the rules on recovery of the training costs. For example, a TFA may stipulate that the costs must be repaid if the employee leaves in the first year after the training takes place, perhaps on a sliding pro-rata scale.

The case below emphasises both the risk of not properly seeking out references, as well as how a well-drafted TFA can make the difference in the Employment Tribunal (ET).

The facts of the case

Francis McGann was offered a captain post with West Atlantic UK, operating on a commercial freight airline. When he applied for the post, he gave referee details, one of whom was named as Desilijic Tiure.

West Atlantic also incurred training costs in relation to Mr McGann, to the value of £4,725. Prior to doing so, West Atlantic asked Mr McGann to sign a training fees agreement, which allowed them to recover any training costs if he was dismissed in the first six months of employment.

West Atlantic later discovered that Mr McGann was trained only to first officer level, and not as a captain. It then investigated further, and found that Desilijic Tiure is another name for the Star Wars character Jabba the Hutt. After that discovery, they asked Mr McGann for an explanation, and he eventually admitted that he provided a false reference.

West Atlantic then gave him the option of resigning, which he chose to do. However, Mr McGann later brought a claim for three months’ notice pay. In response, West Atlantic counterclaimed for the return of the training fees it had incurred.

The ET’s decision

The ET dismissed Mr McGann’s claim, finding that West Atlantic was entitled to treat Mr McGann providing false referee information as an act of gross misconduct. The ET made particular mention of the fact that the potential consequences of Mr McGann’s lie could have been life threatening.

The ET also upheld West Atlantic’s counterclaim, allowing it to recover the £4,725 paid in training costs.

What does this mean?

This case highlights that, while many see references as being worthless (particularly with many preferring to confirm only employment dates and job titles), in many cases it is vital to carry out appropriate reference checks.

If you are relying on an employee to be appropriately trained, be that in anything from playing the piano, to serving tables, to flying a plane, references should be checked to ensure that the employee is actually able to do what they are claiming.

Not carrying out checks could have serious consequences. In this case, had an accident happened with Mr McGann at the helm, there could have been fatal ramifications, as well as liability for the company in failing to check that its employees were fully trained.

Even where appropriate training isn’t the question, seeking a reference can be a way of confirming that an employee is telling the truth on an application form or CV. Employers of course ask reasonable questions of nominated referees and, while you may not receive detailed responses, you will at least have confirmation that the employee hasn’t fabricated their employment history.

This case is also a reminder of the benefit of using properly documented training fee agreements. West Atlantic UK were able to recoup the £4,725 from Mr McGann as it had a clear contractual right to do so. If you are in an industry where you incur costs to train your employees, either at the outset or at any point during employment, ensure that you have outlined the rules on repayment in writing and obtained a signature from the employee. Otherwise, you may waste time and money in the event that things don’t work out.

If you have any questions on any of the issues raised in the above article, please contact Seanpaul McCahill.

19th September 2018