It is inevitable that your organisation will need to deal with employment disputes from time to time. A substantial number of these will be resolved internally, but with over 200,000 claims a year, employment tribunals have become a common part of the dispute resolution process.
How can our employment tribunal solicitors help?
If you have a dispute with an employee, we have the legal knowledge and experience to advise you through every step of the process, from providing strategic advice to representing you at internal and external hearings.
We always try to find a commercially-focused solution to the issue if we can, whether that be arranging mediation, achieving a settlement through ACAS or a settlement agreement, or facilitating the limiting or withdrawal of any claims against you.
We can assist with the following issues:
- Grievances and disciplinaries
- Performance management
- Bullying and harassment
- Whistleblowing complaints
- Discrimination claims
- Disputes over pay and benefits
- TUPE claims
- Restrictive covenants
- Protected conversations
- Settlement agreements
What is the cost of an employment tribunal claim?
Our fees for bringing and defending claims for unfair or wrongful dismissal
- Simple case: £8,000 – £12,000 (excluding VAT)
- Medium complexity case: £12,000 – £20,000 (excluding VAT)
- High complexity case: £20,000 – £40,000 (excluding VAT)
Factors that could make a case more complex:
- If it is necessary to make or defend applications to amend claims or to provide further information about an existing claim
- If it is necessary to make or defend other applications such as striking out a claim or response, interim relief, deposit orders, etc.
- Defending claims that are brought by litigants in person
- Making or defending a costs application
- Complex preliminary issues such as whether the claimant is disabled (if this is not agreed by the parties)
- The number of witnesses and documents
- If it is an automatic unfair dismissal claim e.g. ‘whistle-blowing’ or health and safety-related claims
- Allegations of discrimination which are linked to the dismissal
- Other claims brought within the same proceedings such as claims for holiday pay, arrears of pay, etc.
There will be an additional charge for attending a Tribunal Hearing of between £600 and £1500 per day (excluding VAT). In many cases, it is unnecessary for us to attend as well as a barrister, but in more complex cases we may need to send a representative to assist the barrister with various aspects of the hearing. Generally, we would allow 2 – 10 days depending on the complexity of your case.
Disbursements are costs related to your matter that are payable to third parties, such as barrister’s fees and Tribunal fees (which may be re-introduced in some form within the next 12 – 18 months). We handle the payment of the disbursements on your behalf to ensure a smoother process. Barrister’s fees are estimated at between £800 to £5000 per day (depending on the experience of the advocate) for attending a Tribunal Hearing (including preparation). The barrister’s fees are normally payable in two parts – a ‘brief’ fee for preparation and dealing with the first day of the case, and then a ‘refresher’ fee for each subsequent day that the barrister needs to attend. The brief fee is generally between 1.5 and 3 times the refresher rate. The daily rates we have provided are an aggregate of brief and refresher fees taking into account our experience of both the fees normally charged and the average length of hearings.
The fees set out above cover all of the work in relation to the following key stages of a claim:
- Taking your initial instructions, reviewing the papers and advising you on merits and likely compensation (this is likely to be revisited throughout the matter and subject to change)
- Entering into pre-claim conciliation where this is mandatory to explore whether a settlement can be reached
- Preparing claim or response
- Reviewing and advising on claim or response from other party
- Exploring settlement and negotiating settlement throughout the process
- Preparing or considering a schedule of loss
- Preparing for (and attending) a Preliminary Hearing
- Exchanging documents with the other party and agreeing a bundle of documents
- Taking witness statements, drafting statements and agreeing their content with witnesses
- Preparing bundle of documents
- Reviewing and advising on the other party’s witness statements
- Agreeing a list of issues, a chronology and/or cast list
- Preparation and attendance at Final Hearing, including instructions to the barrister
The stages set out above are an indication of those stages which are usual in most cases. In certain circumstances, however, some of these stages may not be required or there may be additional stages because there is a need to deal with certain aspects of the claim discretely from the main hearing itself. This could lead to the fee being reduced or increased depending on what is actually required. You may wish to deal with certain aspects of the claim yourself and only have our advice in relation to some of the stages. We are happy to discuss such arrangements directly with you.
How long will my employment tribunal 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 is likely to take 2 – 6 weeks from the date conciliation is entered into. If your claim proceeds to a Final Hearing, your case is likely to take 6 – 18 months, depending upon which Tribunal region is dealing with it. This is just an estimate and we will, of course, be able to give you a more accurate timescale once we have more information and as the matter progresses.
We should point out that, due to resource issues within the Tribunal system, there are often considerable delays in paperwork being processed, and hearings are often postponed with no more than 24 – 48 hours’ notice (and may be postponed several times). This can have a substantial effect on both timescales to conclusion and the costs and disbursements incurred – the barrister’s brief fee becomes payable at the point the papers are received by them and it may not always be possible for them to deal with any rearranged hearing, thereby potentially incurring an additional fee for an alternative barrister.
Our Employment team have many years’ experience in dealing with all aspects of employment law. The following set out the names, qualification and experience of our team to help you identify who is acting for you.
Kevin Barnett – Kevin is a partner and qualified in 1997. He deals with all aspects of Employment law.
Edward O’Brien – Edward is an Associate and qualified in 2012. He also deals with all aspects of Employment law,
Emma Starmer – Emma is a Senior Employment Law & HR Advisor. She was admitted as a Member of CILEx in June 2003. She also qualified as a Chartered Member of CIPD (Chartered Institute of Personnel & Development) in July 2009.
Grievances and disciplinaries
If an employee has a concern, problem or complaint, you’ll want to solve this as quickly as possible. Likewise, it’s important to address any conduct issues at an early stage. Disputes like these can be very stressful; not just for those involved and so we can assist you to achieve a smooth and efficient resolution to the issue.
Our employment solicitors can advise on strategy, identify issues, prepare relevant documents and guide you through the law and applicable process.
What is the process?
If you are facing an employee grievance or disciplinary, the following best practice guidelines should help you:
- Follow the ACAS Code (http://www.acas.org.uk/media/pdf/p/f/11287_CoP1_Disciplinary_Procedures_v1__Accessible.pdf) and the ACAS Guide (http://www.acas.org.uk/media/pdf/p/3/DG_Guide_Feb_2019.pdf) (note there is a potential uplift of up to 25% for failure to comply with ACAS Code).
- Try to resolve less serious issues informally in the first instance.
- Ensure the issue is raised in writing.
- Appoint an impartial person to deal with the issue.
- Arrange a meeting to discuss the concerns – in a disciplinary case, pre-warn the employee about the potential outcomes – in a grievance case, identify the resolution the employee seeks. Note the employee’s right to bring an accredited trade union representative or fellow employee as their companion.
- Carry out a reasonable investigation into the issues.
- Communicate the decision promptly in writing (along with the right of appeal).
One of the trickier aspects of employment is dealing with cases of poor performance. This is a sensitive issue for everyone involved and can be really time consuming. It needs to be handled with care and a fair conclusion reached.
Our employment solicitors can assist you with managing the process, including identifying the issues, preparing letters and draft performance action plans, guiding you through the process and related outcome. Where performance is found to be unsatisfactory, it may be that an informal performance action plan will suffice in the first instance. However, it may be that a formal warning and related performance action plan is more appropriate. Whatever the outcome, you need to ensure that you have clearly detailed the areas for improvement and the support you will provide to assist the employee to reach the standard of performance required.
Here are some tips to help address employee performance issues at an early stage:
- Consider the appropriate time to address any issues with employees and try to do so as soon as they arise.
- An informal meeting with an employee can resolve a problem. But they must be made aware that a formal process could be used if an issue remains unresolved.
- Keep records of any e-mails, letters, conversations or meetings (formal or informal) relating to their performance.
- Keep appraisals with employees regular to help the business to give an honest assessment of performance and allow the employee to raise any concerns.
- Don’t give flattering performance reviews if they’re undeserved. They could make it more difficult to dismiss an employee in the future as they will rely on what’s been said before.
- Use probationary periods effectively. If the business has any legitimate concerns about a new employee, it may be able to extend the period or dismiss them at the end of it.
- Employees should not be side-lined, bullied or shunned in order to “push” them to leave. This could lead to a claim for constructive dismissal.
- If possible, establish the reason(s) as to why the employee is underperforming.
- When going through a capability procedure, ensure that you act in line with your own policies and procedures, and also in line with the ACAS guidance.
- Where appropriate, give the employee a series of warnings and a chance to improve prior to dismissal.
- Sometimes, it may be appropriate for the business to explore the possibility of entering into a settlement agreement with an employee.
Bullying and harassment
Bullying and harassment should have no place in the workplace, but unfortunately is a regular occurrence and can have a devastating effort on people’s lives.
Examples of bullying or harassment include:
- Making insults about someone’s appearance or lifestyle
- Bossy behaviour, singling someone out or unfair criticism
- Excluding, victimising or deliberately undermining someone
- Spreading rumours or confidential/sensitive information about someone
- Being passed by for training or promotion
Harassment is different from bullying and claims fall under the Equality Act 2010 or the Protection from Harassment Act 1997. The two types of harassment are very different.
Under the Equality Act, harassment is when someone’s unwanted actions relate to the personal (or ‘protected’) characteristics of another person at work, for example their age, disability, gender, race, religious beliefs or sexual orientation. Harassment turns a happy working environment into one that is unfriendly, offensive and degrading for an individual or group of people. These claims are brought in the employment tribunal.
The Protection from Harassment Act 1997 defines harassment as a course of conduct causing alarm or distress. These claims are brought in the civil courts.
It’s crucial that you have an effective policy and procedure which covers allegations of bullying and harassment so that issues can be dealt with in an appropriate way. You will need to give thought about how to best protect the person making the allegations pending the outcome of an investigation, as well as to consider the appropriate outcome. We have solicitors specialising in harassment and bullying that can guide you through this process.
What is whistleblowing?
Whistleblowing is when someone suspects there is something wrong at their place of work and wants to speak up about it. This is officially called ‘making a disclosure in the public interest’ and means employees are protected by law.
Disclosures must be about one of the following:
- A criminal offence by an individual
- Damage to the environment
- Miscarriage of justice
- Someone’s health and safety is in danger
- The employer isn’t obeying the law
- Any of the above activities are being ‘covered up’
Employees are protected against dismissal for whistleblowing, and workers and employees are protected against detriment, and this is regardless of how long they’ve been working for you. If they are dismissed, they can claim for unfair dismissal. There is no longer a need for disclosure to be made in “good faith” either and compensation for whistleblowing claims is unlimited, which has lead to a rise in claims in this area.
It’s crucial to have an appropriate policy and process to address whistleblowing concerns. It’s also very important that suitably trained people are appointed to deal with them. This encourages your staff to come forward if there is a problem, which in turn can allow you to deal with it internally, protecting your business and your reputation.
Dismissing someone from a job doesn’t simply involve saying the phrase “you’re fired”. Employees have so many more rights in the workplace that protect them against dismissal and so it is important to understand when dismissal is appropriate and how it should be carried out.
What are fair reasons for dismissal?
Dismissing an employee without a potentially fair reason or without following fair procedure may lead to a claim for unfair or wrongful dismissal. There are five potentially fair reasons for dismissing an employee:
- Their continued employment would be illegal
- “Some other substantial reason”
There is a whole host of law around these potentially fair reasons and when they will apply. We can advise you on this law as well as the procedural aspects.
The changes to the law also mean there are now more workplace situations that are discriminatory, such as:
- Direct discrimination – where a person is discriminated against due to one or more protected characteristics, for example a female candidate for a job does not get an interview but a male with less experience does (sometimes an employer might state an occupational requirement in defence)
- Discrimination by association – where a person is associated with someone with a protected characteristic, for example a mother who has given birth to a disabled child returns from maternity leave and applies for promotion, but the job is given to someone less qualified as the employer thinks the mother will need more time off and be less reliable because of her child’s special needs
- Discrimination due to a perceived characteristic – where someone thinks a person has a protected characteristic but they do not, for example a man looks older than his actual age and is not given a role which involves heavy lifting as the employer believes he is ‘too old’ to do physical work
- Harassment – this now includes failing to prevent the harassment of an employee by a third party, for example if a shop manager overhears a customer make repeated racist remarks to one of their shop assistants and does not do anything about it
- Victimisation – this now includes when someone is treated less favourably having made a discrimination claim or has supported someone else to make one, for example if a person has successfully complained that their manager has made unfair comments made about their sexuality, but are then ignored by that manager or other staff they could claim victimisation
Things for employers to consider:
- No minimum length of service to bring discrimination claims
- No financial cap on award for a successful claim
- Employers can be vicariously liable for their employees’ discriminatory acts
Pay and benefits
Employment disputes around pay and benefits are common place. We advise on a range of issues arising from the employment contract, associated schemes (eg, bonus schemes) and legislation which captures particular provisions about how pay must be calculated in certain circumstances. Examples of how we can help you are set out below:
- Wages disputes
- Deductions from pay
- Calculating holiday pay
- Equal pay claims
Please click here for more information on TUPE.
Please click here for more information on restrictive covenants
A settlement agreement is a legal document used to record the financial and practical terms of a package agreed between employer and employee. It includes a commitment that neither side will bring a future claim against the other and can be entered into at any time, but is most common in cases where your employment has, or shortly will be, terminated.
In order to be valid, certain conditions must be in place:
- The agreement must be in writing and state that it meets all of the required conditions (it is usually drafted by the employer and sent to the employee for approval).
- It must relate to a specific complaint or situation.
- The employee must have received independent legal advice from an insured adviser, who is identified in the agreement.
Frequently Asked Questions
From interview to contract termination it is unlawful to discriminate against, victimise or harass an employee or worker because of a protected characteristic – which are:
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Religion or belief
- Sexual orientation