If an employee suffers a measurable financial loss because his or her employer has breached the contract of employment, or any other contract connected with employment, then the employee may be entitled to seek damages by making a breach of contract claim.
The normal forum for pursuing such a claim is a county court or other civil court.
A claim may however be made to an employment tribunal instead if it:arises or is outstanding on the termination of the employee’s employment; and does not relate to one of the following special categories:
a personal injury;
a term requiring the employer to provide living accommodation for the employee or imposing an obligation in connection with the provision of living accommodation;
a term relating to intellectual property (including copyright, rights in performances, moral rights, design rights, registered designs, patents and trademarks);
a term imposing an obligation of confidence or;
a term which is a covenant in restraint of trade.
EMPLOYMENT TRIBUNAL OR CIVIL COURT
There are a number of factors that a dismissed employee making a claim for breach of employment contract may wish to bear in mind in deciding which of the two alternatives – employment tribunal or civil court – to use
For example, the employment tribunals provide a generally speedier and more informal means of redress than the civil courts for the resolution of employment disputes, and their procedures have been designed to make it unnecessary for the parties to incur the cost of legal representation.
On the other hand, employment tribunal claims must be made within three months of the date on which the employment ended (or, if that is not reasonably practicable, within such further period as the tribunal considers reasonably practicable), whereas civil court claims may be made up to a much longer time limit of six years from the date on which the breach of contract occurred.
Another consideration might be that employment tribunal awards for an employer’s breach of contract are subject to an upper limit, currently ?25,000, whereas civil court awards may reflect the full amount of the damages suffered by the dismissed employee.
BREACH OF CONTRACT CLAIMS BY EMPLOYERS
If an employer suffers a measurable financial loss because one of his or her employees breaches the contract of employment, or any other contract connected with employment, then the employer is entitled to seek damages by making a breach of contract claim.
The normal forum for pursuing such a claim is a county court or other civil court.
A claim may be made in an employment tribunal instead, but only if it is in response to a breach of contract claim that an employee has already made to an employment tribunal and that has not since been settled or withdrawn.
In addition, the claim:
must arise or be outstanding on the termination of employment of the employee against whom it is made; and
must not relate to one of the special categories listed above in respect of employees’ claims.
If the dismissed employee withdraws his or her breach of contract claim after the employer has made a claim, the employer’s claim can still be considered by the employment tribunal.
Employment Tribunal claims by employers must normally be made within six weeks of the date on which the employer (or other respondent) receives from the tribunal a copy of the dismissed employee’s originating application (or, if that is not reasonably practicable, within such further period as the tribunal considers reasonably practicable).
Civil court claims may be made up to a much longer time limit of six years from the date on which the breach of contract occurred.
Employment tribunal awards for a breach of contract by an employee are subject to an upper limit, currently ?25,000, whereas civil court awards may reflect the full amount of the damages suffered by the employer.
CONSTRUCTIVE UNFAIR DISMISSAL
If an employer breaches an employee’s contract of employment in a fundamental way, which effectively indicates that he or she no longer intends to be bound by its terms, the employee may be entitled to resign and to regard himself or herself as having been forced to take that step in response to the employer’s behaviour. This is known as constructive dismissal.
If the constructively dismissed employee considers the dismissal to have been unfair, he or she will be entitled to make an unfair dismissal complaint to an employment tribunal in the same way as if the employer had expressly dismissed him or her for objecting to a variation of the agreed terms and conditions of employment.
Again, the right to make an employment tribunal complaint on these grounds is subject to a one year qualifying period of continuous service. The Tribunal would first consider whether or not there was a constructive dismissal and then, if there was, decide whether or not the dismissal was in fact unfair in all the circumstances.
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