Summary
- Misrepresentation in employment can occur on both sides of the relationship: employers who misrepresent facts about the role may face breach of contract claims and damages under the Misrepresentation Act 1967, whilst employees who provide false information during the hiring process may face dismissal with or without notice depending on the severity of the breach.
- Employers accused of misrepresentation may rely on the defence of genuine belief formed on reasonable grounds, which applies where the employer genuinely and reasonably believed their representation was true at the time it was made.
- Where employee misrepresentation is discovered before employment begins, employers can withdraw the job offer within the terms of the offer letter and without discriminatory intent, whilst post-employment discovery may justify dismissal without notice only where the dishonesty amounts to a severe repudiatory breach.
- This article is a guide to misrepresentation in employment for employers in England and Wales, explaining what constitutes misrepresentation by both employers and employees and the options available when misrepresentation is discovered.
- LegalVision is a commercial law firm that specialises in advising clients on employment law and workplace matters.
Tips for Businesses
Implement thorough pre-employment screening processes including reference checks and qualification verification to identify potential misrepresentation before employment begins, when your options for action are strongest. Seek legal advice before dismissing an employee for misrepresentation, particularly where dismissal without notice is being considered, as this carries significant legal risk if the breach is not sufficiently serious. Ensure all representations made to prospective employees about the role, salary, and working conditions are accurate and documented to reduce your exposure to misrepresentation claims.
On this page
- What is Misrepresentation by Employers?
- Are There Defences to Misrepresentation?
- What is Misrepresentation by Employees?
- What Can I Do if My Employee Misrepresents?
- What Steps Should You Take Before Dismissing an Employee for Misrepresentation?
- What Can I Do If My Employee Misrepresents Before I Employ Them?
- Key Takeaways
- Frequently Asked Questions
Misrepresentation in the employment relationship can have serious legal consequences for both employers and employees, whether it occurs during negotiations or within the written contract. Understanding what constitutes misrepresentation and what steps you can take is essential for protecting your business. This article explains misrepresentation and the actions to take if you or your employee have engaged in this behaviour.
What is Misrepresentation by Employers?
If you, as an employer, misrepresent the facts of your employment, you are carrying out misrepresentation under the Misrepresentation Act 1967. This could give rise to your employee being able to:
- leave your business, as your misrepresentation may amount to a breach of the employment contract; and
- sue you for damages if they have suffered due to the misrepresentation.
Are There Defences to Misrepresentation?
If you are accused of misrepresentation as an employer, it may be that you did not mean to misrepresent. In this case, you may have the defence of genuine belief formed from reasonable grounds available to you. This will apply where you genuinely believe your representation was true, within reasonability.
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What is Misrepresentation by Employees?
It is not only employers who can carry out misrepresentation in employment. Commonly, employees may misrepresent themselves during the hiring process. For example, this could relate to their:
- salary;
- level of previous experience;
- educational qualifications;
- dates of previous employment; and
- previous job titles.
What Can I Do if My Employee Misrepresents?
If you think your employee has misrepresented themselves, you should exercise caution and seek legal advice. However, if you have strong evidence that your employee has been fraudulent or negligent, and you would not have hired them but for the representation, you have two options. You may dismiss your employee with or without notice.
Dismissal Without Notice
Dismissal without notice is a risky course of action for you as an employer. This option should be limited to where your employee’s dishonesty is a severe repudiatory breach.
Dismissal With Notice
If the breach is not repudiatory, you should take the option to dismiss your employee with notice. This option also allows you to part with your employee smoothly.
What Steps Should You Take Before Dismissing an Employee for Misrepresentation?
Before dismissing an employee for misrepresentation, you must follow a fair procedure. Failing to do so could expose your business to an unfair dismissal claim. Even where an employee has clearly misrepresented themselves, you should:
- investigate the misrepresentation thoroughly before taking any action;
- invite the employee to a formal disciplinary meeting and give them reasonable notice;
- allow the employee to be accompanied by a colleague or trade union representative at the meeting; and
- give the employee a fair opportunity to explain their conduct before you make a decision.
Employees with at least two years of continuous service have the right to bring an unfair dismissal claim in an Employment Tribunal. If you skip the disciplinary process, a tribunal may find the dismissal procedurally unfair, even if the misrepresentation itself was serious.
Following the ACAS Code of Practice on Disciplinary and Grievance Procedures is strongly recommended. Tribunals take this code into account when assessing whether a dismissal was handled fairly. Document every step of the process carefully to protect your position.
What Can I Do If My Employee Misrepresents Before I Employ Them?
If your employee carries out misrepresentation before they begin employment with your business, you are better positioned to take action against them. In this case, you can retract any offer of employment. However, you must ensure that you do so:
- within any terms of your offer letter; and
- without the intention of discriminating against them.
Get new employees off to a great start with our New Employee Onboarding Checklists (includes on-site and remote).
Key Takeaways
Misrepresentation can occur on both sides of the employment relationship. As an employer, misrepresenting facts about the job can lead to serious consequences, such as an employee leaving without notice due to a breach of contract. However, if you are accused of misrepresentation but genuinely believed you were stating the truth, you may have a defence. Employees can also misrepresent themselves, for example, by providing false information on their CVs. If you discover this before they start, you can withdraw the job offer. If it is uncovered after they have begun working, you may be able to dismiss them, either with or without notice, depending on the circumstances.
If you believe your employee has engaged in misrepresentation, LegalVision provides ongoing legal support for all businesses through our fixed-fee legal membership. Our experienced employment lawyers help businesses manage contracts, employment law, disputes, intellectual property, and more, with unlimited access to specialist lawyers for a fixed monthly fee. To learn more about LegalVision’s legal membership, call 0808 196 8584 or visit our membership page.
Frequently Asked Questions
What is misrepresentation by employers?
Misrepresentation by employers is when you make false misrepresentations about the facts of your employee’s employment. For example, you may misrepresent their salary or job role.
What defence can employers use against misrepresentation claims?
Employers can rely on genuine belief formed from reasonable grounds. This applies where you genuinely believed your representation was true within reasonability.
Can employers withdraw a job offer if an employee misrepresents before starting work?
Yes, employers can retract any offer of employment. However, you must act within your offer letter terms and without discriminatory intent.
When can employers dismiss an employee for misrepresentation without notice?
Dismissal without notice applies only to severe repudiatory breaches. Employers should exercise caution and seek legal advice first.
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