Other remedies

If the contractual change results in a loss of pay, a worker can bring a claim under Part II of the ERA 96 for outstanding wages (see Chapter 4: Deductions and underpayments). The EAT has also confirmed that a failure to pay wages on time is an unlawful deduction from wages (Elizabeth Claire Care Management Ltd v Francis [2005] IRLR 858).

An employee may be able to get an injunction (interdict in Scotland) via the civil courts to prevent their employer changing the contract before any breach occurs, or to force the employer to follow a particular contractual procedure before reaching any decision on change.

It is possible (although rare) for employees also to be sued for breach of contract by the employer. In Attorney General v Blake [2001] IRLR 36, the House of Lords (now Supreme Court) held that employers can take account of any profits made by an employee as a result of their breach, and can claim damages based on these. However, it is often difficult for an employer to identify the financial damage caused by an employee’s breach. In Giraud v Smith [2000] IRLR 763, the EAT held that an employer could not enforce a contractual clause saying that employees who left without giving proper notice had to pay the employer the equivalent of their notice.

Remember that an employer is only able to bring a claim for breach of contract against an ex-employee in the employment tribunal if that individual has already brought a tribunal claim for breach of the employment contract (see Chapter 1).