Employer's contract claim (counterclaim) in the employment tribunal
Employer's contract claim (counterclaim) in the employment tribunal

The following Employment practice note provides comprehensive and up to date legal information covering:

  • Employer's contract claim (counterclaim) in the employment tribunal
  • Rejection of employer’s contractual counterclaim
  • Notification to claimant of employer’s contractual counterclaim
  • How a claimant responds to an employer’s contractual counterclaim
  • Effect on employer's counterclaim if claimant's related claim founders
  • Transitional provisions: claims submitted before 29 July 2013

Employer's contract claim (counterclaim) in the employment tribunal

Coronavirus (COVID-19): All proceedings in employment tribunals in England, Wales and Scotland during the coronavirus (COVID-19) pandemic and until further notice are operating in accordance with the Presidential guidance and directions now issued, which profoundly affect normal practice. See Practice Note: Operation of employment tribunals during the coronavirus (COVID-19) pandemic for full information.

Under the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 (the Order), a respondent employer is entitled to make a contract claim (ie a contractual counterclaim) against a claimant if, and only if, that claimant has included a contract claim in his ET1 claim form which has been served on that respondent. It is not permitted to make such a contractual counterclaim in response to an ET1 which does not include a contract claim.

An employee is only to be treated as including a contract claim in his ET1 claim form if the claim:

  1. must necessarily have been brought under the Order, ie it can only be brought as a breach of contract claim and not alternatively as a statutory claim, or

  2. has unequivocally been brought as a breach of contract claim under the Order

For example, if a claimant presents a claim for arrears of pay the respondent will not be entitled to present a contractual counterclaim because the

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