As explained elsewhere in this Guide (enforcing the contract), an employee who alleges breach of contract may claim damages or an injunction or interdict. The employee may have a choice as to where to bring the claim. It is always possible for the claim to be brought in the ordinary civil courts. Depending on the size and complexity of the claim, the appropriate court will be either the county court (in Scotland, the sheriff court) or the High Court (in Scotland, the Court of Session).
If the employee's employment has ended, he or she has the alternative option of bringing a damages claim in an employment tribunal, provided the claim either arose or was outstanding on the termination of the individual's employment. A tribunal cannot deal with certain types of claims. These are claims relating to damages for:
- personal injury;
- breach of a term that relates to living accommodation;
- intellectual property (such as copyright, patents and trade marks);
- confidentiality obligations; or
- restrictive covenants (restrictions on departing employees ).
Further, a tribunal cannot award more than £25,000 in damages. Therefore an employee who is bringing one of the above types of excluded claim or is seeking to recover more than £25,000 will need to bring his or her claim in the ordinary civil courts.
If an employee brings a claim for breach of contract in the employment tribunal, the employer can make a counter-claim if the employee was himself or herself in breach of contract. In order for this to be possible in the employment tribunal, however, the counter-claim must have arisen or been outstanding on the termination of the employee's employment.