Bringing a claim

Where an employee is still employed, a tribunal claim for unlawful deduction of wages under Part II of the ERA 96 is usually the most straightforward way of challenging an unlawful unilateral change to contract terms, for example, a cut in wages or hours (see Chapter 4). Failure to pay wages on time is an unlawful deduction from wages (Elizabeth Claire Care Management Ltd v Francis [2005] IRLR 858).

It is not possible to claim for breach of contract in the employment tribunal unless the contract has ended. Contract claims in the employment tribunal are capped at £25,000.

In most cases, while an employee is still employed, any claim for breach of contract can only be brought in the civil courts (Small Claims Court, County Court or High Court, depending on the value of the claim).

For many money claims such as wages or holiday pay, court fees in the small claims court are significantly lower than equivalent fees in the employment tribunal (see Chapter 13).

One very important factor to take proper advice on before issuing any claim is the risk of being ordered to pay some or all of the employer’s costs, which can be very substantial. The rules are different depending on whether the member brings an employment tribunal claim or a claim in the civil courts (see Chapter 13).

Employees sometimes choose the civil courts instead of the employment tribunal because they miss the tribunal time limit. The time limit for breach of contract claims in the civil courts is six years, whereas for most employment tribunal claims the deadline is just three months. For example, in Birmingham City Council v Abdullah [2012] UKSC 47, the Supreme Court confirmed that 174 former dinner ladies could bring equal pay claims as breach of contract claims in the civil courts after they missed the tribunal deadline for their claim.

Finally, a claim for breach of contract in either the civil courts or the employment tribunal carries a risk that the employer may launch its own counter-claim in the same proceedings (see below). No “counter-claim” is possible in an employment tribunal claim for unlawful deduction of wages.

The normal remedy for a claim for breach of the employment contract is an award of damages (losses).