Bringing a claim





Where someone is still employed, a tribunal claim for unlawful deduction of wages under Part II of the ERA 96 (as opposed to a claim for breach of contract) is usually the most straightforward way of bringing a legal challenge to an unlawful unilateral change to contract terms such as 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).


Employment tribunals can decide wage claims under Part II ERA 96 even if this requires the tribunal to imply contract terms to give meaning to the parties’ agreement (Agarwal v Cardiff University; Tyne & Wear Passenger Transport Executive t/a Nexus v Anderson & Others [2018] EWCA Civ 2084). The employers in these cases argued that only civil courts can hear disputes over the meaning of a contract term. (The argument is not yet over, because Nexus has appealed to the Supreme Court.) 




No claim for breach of contract can be brought in the employment tribunal unless the contract has already ended. During employment, any claim for breach of contract must be brought in the civil courts (small claims court, county court or High Court, depending on the value of the claim). In any event, contract claims in the employment tribunal are capped at £25,000. 



Employees sometimes use the civil courts instead of the employment tribunal because they have missed 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 very short – in most cases just three months (less one day). For example, in Birmingham City Council v Abdulla [2012] UKSC 47, 174 former school catering staff were allowed to bring their equal pay claims as breach of contract claims in the civil courts after they missed the tribunal deadline for their claim. 





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





An employee may be able to secure an injunction (interdict in Scotland) in the civil courts to prevent their employer breaching the contract or to force the employer to follow a particular contractual procedure before reaching a decision. Such claims are rare, but they are sometimes made against employers such as NHS Trusts, that use detailed contractual disciplinary or capability procedures.