Table of Contents
In Short
- Misrepresentation in employment occurs when false statements are made by either party during negotiations or in the employment contract.
- Employers may face legal consequences if found liable for misrepresentation, such as breaches of contract or damages claims.
- Employees who misrepresent themselves can be dismissed, with or without notice, depending on the severity.
Tips for Businesses
If you suspect misrepresentation by an employee, seek legal advice before taking action. Ensure any dismissal follows proper procedures, as acting without sufficient grounds may lead to an unfair dismissal claim. Additionally, ensure employment offers are clear and non-discriminatory to avoid legal complications.
When your business employs staff, it is important that both you and the employee are honest with each other to maintain a strong employment relationship. However, if either party makes a false statement or promise, this may count as misrepresentation. This may occur during verbal negotiations or within the final written contract. In either case, the party who has created the misrepresentation may be liable for civil penalties. This article explains misrepresentation and 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 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.
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, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. So call us today on 0808 196 8584 or visit our membership page.
Frequently Asked Questions
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.
This may occur when an employee misrepresents themselves. For example, they may untruthfully state their previous employment on their CV.
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