Compensation

Compensation is the main remedy in most Employment Tribunal claims.

 

Employment rights are either contractual or statutory in nature and the law has developed different ways of awarding compensation for the two types of rght.

 

Contract

Rights that arise from a contract of employment have their own principles for assessing loss. In general this will be that where a contract is found to be breached the party breaking the contract must pay compensation to put the other party in the same position they would have been if the contract had not been breached.

 

An example of this would be the contractual right to notice:

 

Right: an employee has a contract providing for 4 weeks notice to be given by the employer on termination of the contract.

 

Remedy for breach: breach of contract claim in employment tribunal or county court

 

Compensation: wages (and fringe benefits) that would have been earned had the client been given, and worked, the 4 week notice period

 

Statute

Where a right created by statute is in issue the loss that can be claimed for breach of that right will be defined by the legislation creating the right.

 

The legal right is defined by the legal provisions that create it and the consequences of breaching that right will be also be defined. The consequences are in general the right to a finding that the right has been breached and often financial redress for the party who has suffered loss.

 

An example of this would be the right to a statement of employment particulars:

.

Right: an employee beginning employment with a new employer shall be given a written statement containing defined particulars of the terms of the employment within two months of starting the employment – section 1 Employment Rights Act 1996 (ERA 1996)

 

Remedy for breach: an employee who does not receive such a statement can apply to an employment tribunal. The tribunal can make a declaration confirming the employers failure – section 11 ERA 1996

 

Compensation: none as a stand alone right.

   

Other employment rights have their own formulation of what compensation may flow from a breach of the right.

 

The important point is that you understand what losses can be compensated for any given breach of an employment right and whether they are limited in anyway. 

  

Overlapping contractual and statutory claims

In many cases there will be a mix of contractual and statutory claims and the different principles of loss that apply to each must be differentiated e.g. between wrongful dismissal (a contractual claim) and unfair dismissal (a statutory claim).

 

Maximising the compensation is therefore a process of:

 

assessing every employment right that may have been breached

(using a systematic approach to include all claims)

 

 

assessing the strength of each claim and excluding those that have less than an acceptable chance of success

(you have to work out what is an acceptable chance of success!)

 

ensuring that the loss for each claim that you think can succeed is soundly calculated

(applying the correct rules of calculation)

 

presenting the loss calculations in a persuasively argued way

(producing a clear schedule of loss with supporting evidence)

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Zero increases by 26%

The Office for National Statistics has released new figures that show nearly 700,000 people work on zero hours contracts - up 26% from last year.  The problems caused by these contracts will require a significant change in the law.

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