Other remedies

If the contract 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). 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. Such claims are rare, but they are sometimes made against employers such as NHS Trusts, that have detailed contractual disciplinary or capability procedures in place.

It is possible (although rare) for employees themselves to be sued for breach of contract by the employer. 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. An employer is only allowed to bring a counter-claim for breach of contract in the employment tribunal if their ex-employee has already brought a tribunal claim for breach of the employment contract (as opposed to a statutory claim for unlawful deduction of wages — see Chapter 4).