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¿Pueden despedirte por engañar en tu currículum?

15 abril 2011 - 6:00 - Autor:

Un informe de Adecco publicado a principios de este año alertaba de que, a diferencia de lo que ocurría en los años previos a la crisis económica -en las que eran habituales las situaciones en que diferentes candidatos que optaban a un puesto de trabajo maquillaban sus currículos elevando sus cualificaciones o experiencia por encima del puesto desempeñado-, se ha detectado en los últimos tiempos una tendencia inversa, conocida como el “boom de los curriculum-B”.

A diferencia del efecto “inflado” -tendente a optar a puestos altamente cualificados- propia de los tiempos de bonanza económica, se ha detectado en la actualidad una tendencia que aboga por el efecto contrario. La situación económica, por todos conocida, se ha invertido. La cifra de paro roza límites extremos y se aprecia ahora que numerosos currículos se “retocan” a la baja para ocultar información y así optar a puestos de trabajo por debajo de la cualificación del candidato, más abundantes. ¿Podría ser esto motivo de despido?

Lo cierto es que, hasta donde conocemos, las resoluciones judiciales recaídas en supuestos de engaño en el currículo han recaído en casos en los que el trabajador se arrogaba la tenencia de títulos y experiencia, de los que carecía. Ejemplo de esta tendencia es, entre otras, la Sentencia del Tribunal Superior de Justicia de Madrid núm. 686/2007, de 29 de Octubre de 2007, que enjuició el supuesto de un trabajador que había engañado a la empresa en la elaboración de su currículum, incorporando titulaciones que no poseía.

En dicho supuesto, el trabajador, que había firmado un contrato de alta dirección con la empresa, había redactado un CV en el que incluía una licenciatura y un MBA, con los que no contaba. En su fundamentación jurídica, la Sentencia determinó que “si algún sentido tiene el currículo de un trabajador, éste consiste en dejar reseña de su historial laboral y profesional a efectos de su valoración en el mercado laboral” por la empresa, produciéndose ahí el engaño, justificativo del despido disciplinario impuesto. Así, la causa aducida en el despido, y ratificada por el Tribunal, radica en que “lo importante en los hechos narrados es el engaño del trabajador”. La Sentencia declaró como procedente el despido disciplinario acordado por la empresa, al tiempo que convalidó la extinción del contrato de trabajo sin derecho a cantidad alguna en concepto de indemnización.

De la doctrina exhibida por esta Sentencia se puede inferir que lo determinante en la existencia de justa causa en el despido es el engaño en la relación empresa-trabajador, entendido éste como simulación, como ánimo defraudatorio frente a la otra parte, es decir, el engaño, “a sabiendas de que se está engañando”. Y es que, como afirma la propia Sentencia, “es previsible que, de haber sabido la empresa que el trabajador no contaba con tal titulación, no se le hubiera contratado”.

Centrados ya en el caso de los “currículum B”, aquéllos que omiten formación o idiomas para optar a un puesto de trabajo de perfil más bajo pero más abundante, lo cierto es que la existencia de engaño es obvia. Lo que parece más complicado es que tal simulación pueda ser entendida como engaño bastante, es decir, como un incumplimiento grave y culpable del trabajador, tal y como exige el art. 54.1 del Estatuto de los Trabajadores para que el despido esté justificado.

Así las cosas, y falta de un análisis pormenorizado de cada supuesto concreto, no parece que la ausencia de un relato fiel de todos los méritos de un candidato a un puesto de trabajo pueda ser constitutivo de engaño al empresario, suficiente para ser considerado como “grave y culpable”. Cuestión distinta es si recortar el “curriculum” es o no recomendable, puesto que la sobrecualificación en el puesto de trabajo lleva inevitablemente a la frustración de ambas partes. Desmotivación y Rotación. Pero ése es ya otro debate.

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Me parece estúpido maquear un cv por que las mentiras tienes las patas muy cortas y antes o después te pillarán.

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Alejandro Touriño

Alejandro Touriño en ECIJAAlejandro es Licenciado en Derecho por la Universidad de Santiago de Compostela; Máster en Derecho Internacional y Relaciones Internacionales por la Universidad Complutense de Madrid y Máster en Práctica Jurídica por la Escuela de Práctica Jurídica de la Universidad Complutense de Madrid. Ha realizado cursos de postgrado en instituciones de prestigio como la University of Brighton, la WIPO Academy o el Instituto de Empresa, en materias relacionadas con el Derecho Comparado, la Propiedad Intelectual y el Derecho del Entretenimiento.

En la actualidad ejerce su actividad Profesional como Responsable del área de Information Technology de ECIJA, asesorando a clientes nacionales e internacionales, tanto en sede judicial como extrajudicial, en cuestiones relacionadas con Derecho del Entretenimiento y las Nuevas Tecnologías, centrando su actividad en la Propiedad Intelectual, Contratación de Software, Nombres de dominio, regulación jurídica de Internet y Redes Sociales. Alejandro compagina su labor profesional con la docencia en másteres universitarios, y es colaborador asiduo de prensa jurídica especializada.

Alejandro es, asimismo, miembro de la alianza europea de Nuevas Tecnologías ‘World IT Lawyers’, miembro de DENAE (Asociación Española de Derecho del Entretenimiento), y del Comité de Dirección del capítulo español de CSA (Cloud Security Alliance).

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