Representations, warranties and misrepresentations in employment
Representations, warranties and misrepresentations in employment

The following Employment practice note provides comprehensive and up to date legal information covering:

  • Representations, warranties and misrepresentations in employment
  • Representations
  • Misrepresentations
  • Warranties, conditions and innominate (intermediate) terms
  • The distinction between representations and terms
  • Misrepresentation and employment contracts
  • Negligent misstatement

This Practice Note considers the legal principles that apply in relation to statements made by the parties when an employment contract, executive service agreement or other contractual arrangements is being negotiated.

Representations

Before an employment relationship starts, there are generally discussions between the parties about the nature of the job and the employer's business and the employee's skills and experience.

If, as part of these discussions, a party makes a statement of fact to the other party which they rely on in deciding whether to enter into the contract, that is a representation.

A representation requires:

  1. a statement of fact

  2. made by one party to the other

  3. which induces them to enter the contract

For example, an employee might provide a curriculum vitae (CV) including details of a degree result. It is a representation if the employer decides to employ partly because of that information.

A representation might become part of the terms of the contract. For example, if the employer represents salary details to the employee during pre-contractual discussions, it may become a contractual term once the contract starts.

For further guidance, see Practice Notes: Contract interpretation—when is a statement a representation or a contractual term? and Contract interpretation—admissibility of pre-contractual negotiations and statements.

Misrepresentations

These are representations which are untrue. There are three types of misrepresentation:

  1. fraudulent (where one party deliberately misrepresents the facts, such as where an employee deliberately lies

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