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).



No claim for breach of contract can be brought in the employment tribunal unless the contract has already ended. While an employee is still employed, 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). Contract claims in the employment tribunal are capped at £25,000. 


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, 174 former school catering staff were able to bring 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. 



Another possible remedy is for the tribunal to make a declaration correcting the statutory written statement of employment particulars under section 12, ERA, 96. A good example is the case of Norman v The National Audit Office [2014] UKEAT/0276/14/BA, in which civil service union PCS successfully relied on section 12, ERA 96 to resist changes to terms and conditions imposed by the National Audit Office in breach of a collective agreement.