Some type of employment- related claims can be brought in the civil courts rather than in an Employment Tribunal. Very broadly these usually relate to payments claimed under your employment contract (`breach of contract` claims). Some high earners will also want to pursue such claims in the civil courts due to the limit on the value of contract claims which an Employment Tribunal is permitted to hear.
Do I have a choice on where I bring my claim?
Generally speaking, it is not permitted to make the same complaints in both the Employment Tribunal and the civil courts. If you have more than one legal claim arising from the same facts, such as an employer refusing to pay you a redundancy payment and at the same time not paying your wages under your contract, careful thought needs to be given in advance as to where the claim(s) can and should be brought. You should take advice about this.
The key issue to bear in mind is that Employment Tribunals will only ever be able to entertain a breach of contract claim you make which exists or arises at the time your contract ends. In addition, employment law gives employees and workers rights that can only be claimed in the Employment Tribunal whether during the life of the contract or on its termination.
I’ve already claimed in the Employment Tribunal, can I make another claim in civil courts?
Some employment claims may be brought in either an Employment Tribunal or the civil courts. Bringing a claim in the civil courts may be a more attractive option due to longer time limits (three years rather than three months) and the absence of a cap on awards. However, claimants are often not aware of these potential benefits at the outset and, if they have already pursued a claim in an Employment Tribunal, they may be prevented from switching to the civil courts. This is due to a doctrine known as cause of action estoppel – which says that once the facts that form the basis of a claim have been held to exist or not exist, that outcome may not be challenged again by either party.
Why does cause of action estoppel exist? This doctrine exists largely for public policy reasons in that it supports finality of litigation, the idea being that if a court (e.g. the Employment Tribunal) has already reached a final decision on a case, it is not in the public interest to reopen that case in a different court. What this means is that if a final decision has not yet been made in an Employment Tribunal, and the claimant writes to that Employment Tribunal explaining its reasons for wanting to withdraw its claim, it may still be possible to progress the claim in the civil courts instead.
If you are thinking about doing this, you should seek advice.
Which civil court hears employment claims?
Claims under an employment contract can be heard in either the county court or the high court. Lower value claims are started in the county court. There are a number of local county courts around the country and although you may start a claim in your local court the employer may ask for it to be transferred to their local court.
Depending on the nature of the claim and how much money is being claimed, cases brought in the civil courts will be allocated to one of three tracks. These are known as the multi track, the fast track and the small claims tracks. The simpler cases with a value of up to £10,000 will be allocated to the small claims track in the country court. They will be heard by a judge in a side room (called ` chambers` ) and the proceedings will be relatively informal.
This article only deals with breach of contract in the small claims track with a value of up to £10,000, heard in the county court ( usually referred to as the small claims court).
What employment breach of contract claims can be brought in the small claims track?
Claims for breach of contract both during the life of the contract and after it has ended provided no more than £10,000 is being asked for. These includes claims for
- Unpaid wages
- Unpaid notice pay
- Unpaid holiday pay due under the contract. If you are claiming holiday pay under the Working Time Regulations, bring your claim in an Employment Tribunal.
- Compensation for contractual changes to terms of employment
Examples of claims which cannot be heard in the civil courts and therefore must be brought only in the Employment Tribunals include claims for unfair dismissal, for redundancy pay and for discrimination in employment -there are many others.
What are the advantages of bringing a claim in the small claims track?
- Time Limits: Civil claims for breach of contract can be brought for up to 6 years from when the breach happened. In an Employment Tribunal, claims can usually only be brought within 3 months less one day from when the breach happened.
- Throughout the Contract: A claim for breach of contract can be brought in small claims track even if employment is on going. These claims can only be brought in the Employment Tribunal if they arise or exist at the time the employment contract has ended – see above
- Legal Costs: As in an Employment Tribunal, the general rule is that each party has to pay his or her own lawyers if they choose to be represented, irrespective of who wins the case. Legal costs (paying your opponent’s legal costs as well as your own) are rarely ordered against a losing party in a small claim. In the Employment Tribunal there is a ` discretion` to order this and the risk can be somewhat greater of the employee having to pay the employer’s legal costs if they lose.
- Mediation: County courts provide a mediation service as an alternative to a contested hearing which is less stressful. Mediation is available in Employment Tribunals but only in certain cases.
- User Friendly: As in an Employment Tribunal, but unlike in other civil tracks, the procedure is relatively `user friendly` and many if not most parties are not represented by lawyers.
What are the disadvantages of bringing a claim in the small claims track?
- Wages Claims and Proof: Some complaints based on breach of contract can sometimes instead be brought under other more advantageous legislation in an Employment Tribunal. For example, a complaint about unpaid wages of less than £10,000 where employment is ongoing can be brought either as a claim for breach of contract in the small claims track, or as a claim for unlawful deduction wages in an Employment Tribunal.Proving these claims as wages deductions can be more straightforward because of the way employment law legislation provides rights.
- Wages Claims and Employer’s contract claims: If a claim for breach of contract for unpaid wages is brought in the small claims court, an employer can counterclaim for breach of contract (ie they can say that it was you who broke the contract and try to get compensation for that). An employer cannot bring a counterclaim to an Employment Tribunal claim for unlawful deductions in wages.
- Claims under one Umbrella: If you have several legal claims arising some the same set of facts, including claims that cannot be brought at all in the civil courts, it is usually more convenient and cheaper to bring all your claims together in the Employment Tribunal.
- Court Expertise: County court judges are experts but not employment law experts and you may find they are less quick to grasp the details of what went wrong in your job which lead to you bringing a claim.
- Court Rules: You will be expected to follow the procedural requirements set out in the Civil Procedure Rules throughout the course of your proceedings. This will include obeying the order in which proceedings are conducted and meeting relevant deadlines. There may be consequences if you fail to follow the rules correctly.
- Award: the maximum amount of compensation that you can expect to be awarded in the small claims track is £10,000. In the Employment Tribunal the maximum amount of compensation that you can expect to be awarded is £25,000. However the fast track does allow for claims of up to £25,000.
- Cost/Time of Litigation: The requirements of civil litigation mean that it likely that more time will be spent when pursuing a claim in the civil courts, and additionally the various fees (e.g. small claims court fee) make it generally more expensive than a claim pursued in the Employment Tribunal.
How can a small claims action be brought and what happens?
- Pre-Action: Prior to starting a small claims case, you must raise the complaint before going to court. You should write to your employer stating how much you are owed and why, and giving your employer time (usually, 14 days) to respond before starting the case. You should warn your employer in the letter that you will take court action should you not get a reply by the deadline. Your letter should be sent by recorded delivery post and you should keep a copy of it.
- Forms: To start your claim, you complete form N1, available at www.justice.gov.uk. Alternatively you can use the Money Claims Service (www.moneyclaim.gov.uk) to make your claim electronically.
- The court will allocate a case number to the case and will send your claim form to your employer (called the Defendant). The Defendant will have a set amount of time in which to respond to it (either 14 or 28 days).
- Allocation to Track: If there is no response by the deadline, you should ask the court for a judgment in default, provided you are claiming a fixed amount of money. If the Defendant responds and says it is going to defend the case, the court will inform you of which track it intends to assign the case. This is called Allocation and is usually done by letter but sometimes the judge will want to meet the parties to discuss which track the case should go in ( called an Allocation Hearing ).You should attend this hearing or there is a danger that your case may be dismissed
- Directions: The court will then set directions for the case. Directions are steps which each party must comply with by a stated deadline, in order for the case to be ready for a final hearing.
- Final Hearing: The case will then be listed for a full hearing .Be prepared and attend, preferably with a friend or relative, and take all your papers with you. The final hearing sometimes takes place on paper in small claims cases.
For more advice on the civil courts and small claims see
Giving Legal Advice by Elaine Heslop, published by Legal Action Group
This advice applies in England, Wales, and Northern Ireland. If you live in another part of the UK, the law may differ. Please call our helpline for more details
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