Is It Fair to Terminate an Employee Over a Background Check After Resignation? Seeking Legal Advice

Background Verification and Termination Concerns

I am working in a micromanagement kind of organization. My colleague joined a year ago in the same organization. A few weeks after his joining, he received a call from HR stating that his Background Verification (BGV) had turned red, and he needed to provide supporting documents. He received one email but did not submit any documents. He hasn't heard from HR since. He is a crucial resource in the project, and considering that, no one spoke about it.

Life was good for him until the project stabilized. After that, he had a personal rivalry with the manager and resigned from the organization. The strange thing that happened was, two days before his last working day, HR called and said he was being terminated because his BGV was not cleared. He heard this after working with the organization for more than nine months. Is this ethical? Do you think it is fair to do this? They also said they wouldn't be providing any documents related to his experience and other matters.

Legal Considerations and Advice

I just want to ask, is a background check a way to terminate an employee whenever the employer feels like it? Can he proceed legally? Please advise me on this.

Dear Sasi Kanth, any termination without a domestic inquiry is illegal. Several courts, whether labor courts or high courts, have issued numerous verdicts setting aside the termination of employees.

You can make a formal complaint to the Labor Officer (LO) of your area under whose jurisdiction your company falls. You are eligible to approach the LO provided you do not work in a supervisory capacity. What was your designation? How many persons reported to you?

When you approach the labor officer, carry proof of your employment like the appointment letter, a photocopy of your ID (if applicable), salary slips, bank account statements, etc. Try to speak in the local language. If you do not know the local language, then take someone with you who speaks the local language. As it is a government office, please wear formal clothing.

Upon receipt of your formal complaint, they will schedule a meeting to hear both parties. Both parties are given a fair chance to prove their points. Nevertheless, in general, there is an invisible tilt toward the employee.

Please note that the LO is different from a labor lawyer. The former is a government-appointed authority and does not charge any fees, whereas the latter is an individual professional who works in a personal capacity, and naturally, his/her services are chargeable.

Source of the Trouble

While I have suggested a remedy to redress your grievance, when doubts were raised regarding your BGV, you should have addressed them without ignoring them. One of the reasons for the disputes is your lack of communication.

Lessons to HR

HR has treated this employee as "use and throw." Earlier questions were raised about the BGV, but the matter was never brought to a logical conclusion. It was kept on hold. When the need arose to remove the employee, negative BGV was used as an alibi to terminate the employee. Such machinations degrade the work culture. "Employee engagement" is one of the most cherished phrases for HR professionals. Is this how employees engage with the company?

Friction or strife between a manager and his subordinates is common. In this context, should HR build a bridge between the two or take the manager's side and burn it? HR should intervene whenever they observe any kind of injustice. Most likely, the sympathies of the ordinary employee would be with the terminated employee.

Thanks,

Dinesh Divekar

HR cannot terminate him for negative background verification before issuing a show cause notice first. In that case, HR should also wait for the employee's response. Termination should be the last resort.

If he has resigned and received acceptance of the resignation while serving the notice period, the management should allow for a smooth exit. However, you have not mentioned the reason for the negative background verification. If the issue pertains to legal troubles with the previous organization or false information submitted at the time of joining regarding educational/employment documents, the management should issue a notice as soon as possible.

Thanks and Regards,
Akash Sharma

In most organizations where background verification is carried out, the entire process is completed well before releasing the job offer. Only if the verification meets the required standards and all the statements/documents produced by the candidate are proven valid, does the organization proceed with releasing the offer.

In your case, you mentioned that your HR had contacted your colleague a week after his Date of Joining (DOJ) regarding his supporting documents as his verification turned red. If the appointment order stipulated that termination of his candidature would occur in the event of a negative background verification, you can advise your colleague to seek legal recourse.

I would like clarification on the grounds on which the background verification was flagged as red. If the issue pertains to the credibility of the documents provided by your colleague during the final interview or at the time of joining, then the employer is not responsible for the termination. The offer automatically expires if a candidate's submitted documents are found to be fraudulent.

However, the email sent by HR can serve as evidence, indicating that even though your colleague did not respond, HR permitted him to continue working with the organization for 9 months until termination. Your colleague can claim the salary for the notice period as promised in the appointment order.

The most appropriate guidance for your query will be provided by senior members once you provide a detailed explanation of the negative background verification.

Regards,
M. Harishkumar

I have a couple of questions. Please help me understand the entire case.

1. Did the mail from HR mention what supporting documents are required, and why didn't he submit any to the employer? By the way, what documents were asked by HR?

2. Was his resignation accepted? Did the organization or management declare his last working day? Additionally, what does your Appointment Letter say about reference checks or Background Verification?

Besides this, if an employee has forged documents or given false information, or concealed police records pertaining to a felony or any other crime, the employee's services are liable to be terminated as per the clauses of the appointment letter.

Regards,
Rahul Chhabra