Our experienced Employment team regularly act for clients in Employment Tribunal claims, from the simplest to the most complex.
We act for both senior employees and businesses, so we are able to anticipate our opponents' tactics and devise the best strategy to achieve your aims. We are often able to achieve a favourable settlement at an early stage, whether during pre-claim negotiations or at an early stage in the case, saving you time and costs and avoiding the uncertainty and stress of litigation.
Wrongful and Unfair Dismissal Claims
Wrongful dismissal claims involve claims for payment of contractual or statutory notice where an employer has terminated the employment of an employee without notice or without making a payment in lieu of notice. Although these claims can be brought as civil claims for breach of contract either in the County Court or the High Court they are usually brought in an Employment Tribunal (often ancillary to a claim for unfair dismissal). The approximate charges below only cover wrongful dismissal claims brought in the Employment Tribunal.
Unfair dismissal claims involve claims that an employee has not been dismissed fairly and in accordance with the terms of the Employment Rights Act 1996. A dismissal can be unfair on procedural grounds (for example because the employee was not given an opportunity to respond in a disciplinary hearing to disciplinary allegations made against the employee) or on substantive grounds (for example that the employee's purported dismissal by reason of redundancy was unfair because there was no redundancy situation at the time of the dismissal).
In order for a dismissal to be potentially fair the employer has to show that it relates to:
- the capability or qualifications of the employee;
- the conduct of the employee;
- that the employee's position was redundant;
- that the employee could not continue to work because of a duty or restriction imposed by an enactment, for example if an employee had lost his right to live and work in the United Kingdom; or
- some other substantial reason of a kind such as to justify dismissing the employee.
These types of claims can range from the very straightforward, where liability is not seriously disputed by the employer, to the very complex where, for example, the employee is alleging that the reason for the dismissal was that they made protected disclosures (i.e. that they were a whistleblower).
We have developed pricing guidelines for three different types of unfair/wrongful dismissal claims: simple cases which will usually involve no more than a one day Final Hearing in the Employment Tribunal; medium complexity cases (typically involving a 2 – 3 day Final Hearing in the Employment Tribunal and one Preliminary Hearing); and high complexity cases (involving a 5 – 10 day Final Hearing in the Employment Tribunal and two Preliminary Hearings) (e.g. more complex whistleblowing dismissal cases).
Some cases involve exceptional complexity which take them outside the scope of the charges set out below. Such cases may include:
- more than 2 Preliminary Hearings; and/or
- a Final Hearing listed for more than 10 days; and/or
- issues of foreign law or the need to interview witnesses or inspect documents outside the UK; and/or
- those with an exceptionally high volume of relevant documentation.
Key stages of the work
The charges set out below cover the work in relation to the following key stages of an unfair/ wrongful dismissal claim:
- Reviewing the papers and taking your initial instructions and advising you on the merits of the claim or defence and likely compensation and any potential complications and proposed strategy. These would be reviewed from time to time as the case progresses and is subject to change.
- Engaging in pre-claim conciliation, either directly with the other party or via ACAS, which is mandatory before a claim can be commenced. The aim would be to see if a settlement can be reached without the need for proceedings to be commenced.
- Preparation of the claim form outlining your case and the nature of the dispute or the response form where a claim has been made against you.
- Considering and advising on the claim or the response from the other party.
- Throughout the process considering potential settlement and, where instructed by you to do so, seeking to negotiate settlement.
- Preparing or considering a schedule of loss.
- Preparing for (and attending) a Preliminary Hearing (for medium and high complexity cases).
- Exchanging relevant documents with the other party, inspecting the other party's disclosed documents and agreeing a bundle of documents for the Final Hearing.
- Taking witness statements, drafting statements and agreeing their content with witnesses.
- Preparing a bundle of documents for the Final Hearing.
- Reviewing and advising on the other party's witness statements.
- Preparation of and agreeing a list of issues, a chronology and/or cast list.
- Preparation for the Final Hearing, including instructing Counsel.
Our charges below do not include:
- Advice on internal employment procedures, such as grievance and disciplinary procedures and appeals.
- Preparation for and attendance at mediation or arbitration or other alternative dispute resolution meetings or unusually prolonged settlement negotiations.
- Attendance at any Preliminary or the Final Hearing – see "Hearing Costs" below.
- Where applications to the Employment Tribunal for costs are made, usually because one party is alleged to have acted unreasonably or vexatiously in bringing or defending a claim or in the conduct of a claim; and any related costs assessment.
- The conduct of any separate remedies hearing, if the Claimant is successful with their claim.
- Advice on tax treatment of any settlement payment or Tribunal award.
- Advice on regulatory issues connected with Employment Tribunal litigation.
- Advice on criminal allegations or proceedings connected with Employment Tribunal litigation.
- Advice on personal injury claims arising from employment (including claims for psychiatric injury).
- Making or responding to data subject access requests made in the course of (or anticipation of) litigation.
- Advice on reputation management and press handling.
- Any appeal against or review of a judgment or order of the Employment Tribunal (or any appeal to a higher court).
- Travel time if, for example, substantial travel is required to take instructions or attend any Tribunal hearings, or hotel accommodation/subsistence costs.
- Any disbursements, including Counsel's fees, in respect of which see below.
Howard Kennedy provides advice in all the above areas and we can provide an estimate of fees where this is required.
The charges below exclude our charges for our attendance at any Preliminary Hearing and Final Hearing.
For a simple case we anticipate our charges to be between £25,000 and £40,000 (excluding VAT at 20%).
For a case of medium complexity our charges would be between £40,000 and £100,000 (excluding VAT at 20%)
For a case of high complexity our charges would be between £100,000 to £250,000 (excluding VAT).
There are a number of factors that can make a potentially simple case a more complex one. For example:
- If one of the parties is not legally represented. Often litigants in person or those with non-lawyer representatives are unfamiliar with employment law and Employment Tribunal procedure.
- Where instructions are given piecemeal or materially change or where the evidence or documents are provided piecemeal or materially change during the course of the proceedings.
- If it is necessary to make or defend applications to amend claims or to provide further information in relation to a claim.
- If the claim involves a complex preliminary issue, for example whether or not the employee made protected disclosures for the purposes of whistleblowing legislation, whether the Claimant was an employee or whether the Claimant has the requisite length of service needed to bring the claim.
- Where pre-hearing applications are necessary, for example, where proper disclosure is not given by a party and it becomes necessary to seek an order of the Employment Tribunal compelling that party to provide full disclosure.
- Cases involving a substantial number of witnesses and/or documents.
- Cases where key documentation is missing or inadequate.
- Cases involving more than one (potential) Claimant or Respondent.
- Cases involving TUPE transfer issues.
- Applications for the case to be heard in private, for anonymity of any of the parties or for there to be restrictions on reporting of the case.
- Cases where the employee claims that he or she has been automatically unfairly dismissed for blowing the whistle on the employer.
- Cases where there is unreasonable or vexatious conduct in the conduct of the claim on your part or that of the other party or their representative, including where applications for costs are made.
- Cases in which you do not follow our advice in the conduct of the claim.
- Where other claims are made which are linked to the unfair or wrongful dismissal claim, for example, a claim for disability discrimination (note that any additional claims are not covered within the charges set out).
In addition to the costs referred above there would be additional charges for our attendance at any Employment Tribunal hearings. It is usual for Counsel (Barrister) to be instructed to present or defend the claim and for a representative of our firm to attend with Counsel. For simple claims or claims of medium complexity we would usually suggest a junior member of our team attend the hearing.
Our daily rate for members of the team to attend a Tribunal is between £1,750 + VAT of 20% and £5,000 + VAT of 20% depending on the seniority of the team member.
The fees for Counsel depend on the seniority of the barrister instructed to represent you, the complexity of the issues, the volume of documentation and the length of the hearing. They also vary between chambers (barristers are self-employed but usually work out of a particular chambers and share staff and costs. Different chambers tend to have different fee rates). The fees typically involve a "Brief" fee which covers the preparation for the hearing and the first day of the hearing. If the case is scheduled to last for longer than one day there would be additional "Refresher" fees for each extra day of the hearing.
By way of example, Counsel's fees for the three categories of case outlined below could be in the following ranges:
- Simple wrongful or unfair dismissal case, listed for 1 day hearing, instructing junior Counsel of between 3 and 5 years' experience – Brief fee range - £750 to £1,000 + VAT
- Medium complexity unfair dismissal case listed for 3 day hearing, instructing junior Counsel of 8 – 12 years' experience – Brief fee range - £5,000 to £7,500 + VAT – Refreshers - £1,500 to £2,000 + VAT
- High complexity whistleblowing unfair dismissal case listed for 10 day hearing, instructing more senior Counsel of 15+ years' experience – Brief fee range - £20,000 to £50,000 + VAT – Refreshers - £2,500 to £4,500 + VAT
Additional Counsel's fees may be charged if advice is required on the merits of your claim or at a preliminary stage.
You may also incur disbursements, which are costs related to your matter that are payable to third parties. Employment Tribunals currently do not charge fees for bringing or defending claims but there may be courier or copying charges, for example, in preparing disclosure or bundles of documents for the Employment Tribunal.
The charge guidelines set out above are for the key stages referred to, but if some of the key stages are not required, the charges will be reduced. Alternatively, you may wish to handle elements of the claim yourself and only seek our advice in relation to some of the stages. This can also be arranged according to your individual requirements. However, please bear in mind that this may increase overall costs if aspects of case preparation are not carried out correctly.
How long will my matter take?
The time that it takes from taking your initial instructions to the final resolution of your matter depends largely on the stage at which your case is resolved. If a settlement is reached during pre-claim conciliation, your case may take 4 - 8 weeks. If your claim proceeds to a one-day Final Hearing, your case may take around 6 months. However, Employment Tribunal resources are particularly stretched at the moment due to a scarcity of Employment Judges to hear cases, which is leading to substantial delays in getting hearing dates, particularly for longer hearings.
We will of course be able to give you a more accurate timescale once we have more information and as the matter progresses.
For details of the lawyers who may act on your matter please see below.