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Employment Law

Employment Law

Employment Tribunal Claims: Unfair and/or Wrongful Dismissal

Whether you are a person bringing a claim (a “claimant”) or a business defending a claim (a “respondent”) of unfair dismissal or wrongful dismissal, TP Legal Solicitors aim to provide you with a practical and cost-effective approach that meets your needs.

Firstly, to understand these two quite different claims:-

1. Unfair dismissal often relates to the process that the employer has undertaken in dismissing an employee, which could be unreasonable or, as the name suggests, unfair. It is usually (but not always) restricted to employees who have 2 years of continuous employment (considering their statutory notice period).

2. Wrongful dismissal relates to the termination of an employee’s employment that was in breach of their contract of employment. One of the most frequent examples of this in practice is that the employer has neglected to provide the employee with the correct amount of notice and/or has failed to pay the employee the correct notice pay.

The costs of bringing these specific claims can vary depending on various factors affecting the case, which are explored in more detail below. The aim of this note is to provide both individuals and businesses with a general indication of the likely costs in bringing or defending and claim of unfair dismissal or wrongful dismissal before the Employment Tribunal. We will advise you more specifically on the costs of your claim as your case progresses.

The costs set out below are presented without the inclusion of VAT, which is an additional charge. VAT is currently charged at a rate of 20%.

Legal fees:

We have broken down the legal fees for representing you in a claim of unfair dismissal or wrongful dismissalinto the following categories:-

a. Straightforward cases;

b. Relatively complex cases; and

c. Very complex cases.

Further details on the varying complexity of cases and the likely fees involved are contained below.

a. Straightforward cases

A straightforward case is usually one that is listed to be heard over the course of one or two days in the Employment Tribunal. The length of the hearing in the Tribunal will be determined by the issues to be heard and the number of witnesses who are required to give evidence.

For these forms of cases we can offer a fixed fee service of£8,000 plus VAT for a case involving a one day Tribunal hearing or £10,000 plus VAT for a case involving a two day Tribunal hearing.

Further information on any disbursements or expenses that may become payable are outlined below.

b. Relatively complex cases

As with straightforward cases, the length of the final hearing in the claim will often determine whether a case is of increased complexity or not. However, it may also consist of a claim that has more elements to it.

For instance:-

i) The final hearing may have been listed to last between 3 and 5 days in the Employment Tribunal; and/or

ii) Other claims may be brought alongside the unfair dismissal or wrongful dismissal claim; and/or

iii) There may be complex issues that the Tribunal will need to determine before the case can progress to a tribunal (i.e. whether the claimant was an employee or not, whether the claimant was dismissed, etc.).

These elements will mean that the claim will either be more complex or will last longer.

We have detailed some of the factors that can increase the complexity of a claim below.

For these sorts of claims, we would anticipate that the likely fees would be between £12,000 plus VAT and disbursements/expenses and £25,000 plus VAT and disbursements/expenses.

c. Very complex cases

Unfortunately, it is not possible for us to place specific costs brackets for very complex cases.

However it is important to note that these sorts of claims are likely to cost more than £25,000 plus VAT and disbursements/expenses.

As we have identified, the complexity of the case itself will impact upon the fees. There are numerous factors that could affect the complexity of the case. These include (but are not necessarily limited to):-

• The number of claims being raised;

• The issues of law being raised in the claim, whether they are complex in and of themselves, and whether they are disputed;

• The value of the claim (i.e. what sum the claimant is claiming in compensation), even if the claim is otherwise “straightforward”;

• Whether a party wishes to amend their claim or response to a claim and/or whether further clarity is required;

• The number of documents involved in the claim (for instance, the greater the number of documents that we need to review, the more likely that the claim will fall within a band of complexity);

• The number of witnesses involved;

• The complexity of the preliminary issues in the claim (for example, the claim may be contested for being raised outside of the time limit for raising a claim or there may be questions surrounding whether the claimant meets the legal test for having a disability);

• Presenting or contesting applications raised before the Employment Tribunal;

• If a party is not legally represented in the proceedings;

• If a costs application has been or is to be made to the Employment Tribunal;

• If the claim involves allegations of discrimination;

•If individuals involved in the claim are also alleged to be personally liable in the claim.

How we charge

Our charges are based on the level and experience of our “fee earners” who will be responsible for your claim or response to a claim.

We have set out the levels, experience, and hourly charging rates of our solicitors below:-

NamePositionQualified as a Solicitor on:Hourly Rate (excluding VAT)
Richard Hiron Associate Solicitor 01/05/2016 £200

Disbursements or expenses

Whilst we understand that the government is currently reviewing its position on Employment Tribunal fees, please note that such fees are not payable at the current time.

However, in representing you, we may still incur expenses on your behalf.

Disbursements or expenses often relate to things such as photocopying and searches at Companies House. We charge a cost of 20pper copy for photocopying. Please also note that the size of a hearing bundle may impact upon the photocopying costs, as will an order from the Employment Tribunal requiring us to produce any hearing bundle on your behalf.

Disbursements or expenses are also likely to include payments such as:-

• Commuting costs;

• Car parking fees;

• Subsistence (i.e. reasonably priced meals);

• Delivery fees;

• Hotel fees (if the case requires a fee earner to stay overnight).

We would hope to advise you of and to agree any such disbursements or expenses before they are incurred.

The case may also be sufficiently complex for us to decide that it would be appropriate to instruct a barrister (who we refer to as “Counsel”) to represent you at a hearing in the Employment Tribunal in order to give your case the best possible chance of success. If this is the case, then we would advise you of Counsel’s fees in advance of any fees being incurred and to agree these with you in advance of any hearing.

Counsel are third parties to this firm, which makes it difficult for us to confirm what their fees might be at this stage. However, their fees may be determined by:-

• How senior Counsel is and their experience;

• How complex the case is (please see above);

• How long Counsel needs to adequately prepare for your case; and

• How long the hearing is.

Timescales for claims

Sadly, the Employment Tribunal process is not always a quick one and, as the Tribunal is a third party to this firm, we are not always able to guarantee definite timescales.

However, in our experience, the Tribunal process can take between 12 to 18 months to be completed.

This is affected by influences both upon and within the claim, such as:-

• The capacity of the Employment Tribunal to hear the case (for instance, in processing correspondence and listing hearings in the case);

• The complexity of the claim (please see above);

• The approach taken by the opposing side (for instance, if the other side are particularly aggressive in their approach, this may lead to applications and potential delays);

• Whether some form of compromise may be reached between the parties;

• Your availability to provide us with instructions.

The usual process involving in bringing a claim of unfair dismissal or wrongful dismissal

We have provided this information as a guideline to assist in your understanding of the claims process. Please note that not all steps may be necessary or, alternatively, further steps may be required.

1. You provide us with your instructions – During our first meeting, we will discuss the case with you. We may require you to provide further details on the information that you have given us and/or to supply relevant documentation to assist us in evaluating your position. It may be possible for us to provide you with comprehensive advice at this meeting, including the strength of the claim and your options. If it is not possible for us to do this at the meeting, then we will endeavour to do so as soon as possible once we are in possession of all the information that we require to be able to assist you. We will also aim to provide you with an indication of the likely fees, together with your options for funding the case and, if you wish us to proceed on your behalf, we will send you a “Client Care Letter” and our terms of business, confirming your instructions, our charges, and the actions that we will take on your behalf.

2. Acas Early Conciliation – This is the process before a claimant raises a claim before the Employment Tribunal and is mandatory in all but a few cases. It is offered by the Advisory, Conciliation and Arbitration Service (Acas), which is an independent body that serves as a mediator. It is important to note that any time spent in Early Conciliation will be added onto the time limit for the claimant to submit their claim to the Tribunal if Early Conciliation is unsuccessful. You may wish to handle the Acas Early Conciliation process yourself to reduce the legal fees incurred; however, we will still be able to assist you by advising in the background. Alternatively, for ease, you may wish us to handle the process on your behalf. If a compromise can be reached and both parties agree to it, it will be recorded in a “COT3 agreement”, which is similar to a settlement agreement, except that it will be agreed through Acas and will not require the claimant to take specific legal advice.

3. Continuing Settlement Discussions – Even if Acas Early Conciliation is unsuccessful, that does not mean that a settlement cannot be reached during a Tribunal claim. It is open to both parties to make “without prejudice” offers, meaning that those offers cannot then be discussed in the claim itself; those offers may also be made “save as to costs”, meaning that they may be raised at the end of the claim if/when the Tribunal is considering the level of compensation to be awarded, especially if the party that has declined the offer has behaved in a particularly inappropriate manner.

4. Issuing the claim or responding to a claim – This is essentially the statement of your case. Whilst it will not typically state cases, it will dissect your case in the context of the relevant law, whilst relying upon the relevant facts. You will have final approval over this document before we submit it to the Employment Tribunal. Preparing the appropriate particulars of claim or grounds of response may not necessarily bring this stage to an end, as the respondent may well ask for certain elements of the claim to be clarified or there may be elements of the claim that we may need to take further instructions from a respondent business on.

5. Schedule of loss – This is a document that sets out the compensation that the claimant wishes to obtain including, where relevant, losses flowing from the dismissal. The respondent may also produce a counter schedule of loss the claim. It may not be possible to confirm all of the figures forming the compensation being claimed until later in the process, but preparing a schedule of loss early in the proceedings can assist both parties in determining the likely costs involved. Please note that legal fees usually cannot be claimed in the Employment Tribunal and are therefore unlikely to be included within a schedule of loss.

6. Preliminary hearing – The Employment Tribunal will often schedule a preliminary hearing so that it can satisfy itself of any issues in the claim and issue next steps (known as “directions”), such as preparing a bundle and disclosing witness statements, for the parties to follow so that the case will be in the best position to proceed to a full Tribunal hearing. In preparation for a preliminary hearing, it will often be necessary for us to prepare and attempt to agree a list of issues or chronology with the other party, and to draft and attempt to agree a list of directions with the other party. In some cases, it may also be necessary to prepare a bundle of documents for the preliminary hearing and/or to prepare witness statements for use at the preliminary hearing as well. We will advise you of whether you are required to be present at the preliminary hearing and whether, depending on the complexity of the case, it is appropriate for Counsel to be instructed to represent you. Please note that, where a case involves particularly complex issues, more than one preliminary hearing may be held, which will impact upon the likely costs.

7. Complying with directions – Once they have been issued by the Tribunal, the directions will be similar to a court order, so it will be important that they are met, unless an agreement for more flexibility in meeting them can be reached with the other party (other than attending the final hearing). We will require your assistance in meeting the directions. The directions will often address the following:-

(a) Providing further and better particulars of claim and/or responding to requests for further and better particulars of claim;

(b) Gathering and disclosing documents relevant to your case;

(c) Preparing and attempting to agree a bundle of documents to be used at the final hearing. These bundles must be indexed and paginated;

(d) Preparing a schedule of loss or counter schedule of loss (even if this has been done under point 5 above, an updated copy may need to be made available);

(e) Liaising with you and your intended witnesses to discuss your evidence and preparations for the final hearing;

(f) Drafting witness statements, liaising with you and your witnesses in relation to the same, and finalising the witness statements based on those instructions;

(g) Exchanging witness statements with the other party;

(h) Considering the other party’s witness statements, advising you on them, and seeking your instructions on them;

(i) Preparing and attempting to agree a list of issues, a chronology, and a list of issues with the other party;

(j) Lodging the witness statements, bundles, and any other relevant documents with the Employment Tribunal in advance of the hearing.

8. Final Hearing – We will discuss the arrangements for the final hearing well in advance of the hearing itself. For example, this will include whether we will represent you at the hearing or whether we would recommend that Counsel be instructed in the claim. If Counsel is instructed, then we will instruct Counsel in writing on your behalf, together with copies of the relevant paperwork that they will need to be able to represent you. Please note that, in terms of preparing you and your witnesses to give evidence in the Tribunal, we can familiarise you with the processes, but we cannot coach you on your evidence.

9. Judgment – The Tribunal may hand down its decision orally at the conclusion of the claim or it may provide that decision in writing later. This is known as the Tribunal’s judgment. Once this has been received and once we have had an opportunity to consider it, we will discuss the implications of that decision with you, including whether you may wish to have the decision reviewed or whether you may wish to appeal the decision.

10. Remedies Hearing – if the claimant is successful or if the Tribunal is minded to grant a costs application to either party, then the Tribunal may establish a separate hearing to determine whether any compensation should be awarded and, if so, the appropriate level of that compensation.

What the fees WILL NOT cover

The fees that we have set out above will only cover the steps detailed in points 1-10 immediately above.

They will not cover the costs of advising you on the prospects of any review or appeal of a Tribunal decision or in representing you during a review or appeal.

We may, however, be able to agree a separate fee structure with you should you wish to have the decision reviewed or appealed.