Employment Tribunals are part of the HM Courts & Tribunal Service and are responsible for dealing with most workplace disputes that cannot be resolved between the parties.
Guidance on making and defending Employment Tribunal claims is available on the government’s website.
In most cases, before an individual can make an Employment Tribunal claim they must notify the Advisory, Conciliation and Arbitration Service (ACAS) and the parties will have an opportunity to try to settle the dispute by using the free ACAS Early Conciliationservice.
David Woffinden is a specialist employment lawyer, with more than 20 years of experience of bringing, defending and resolving Employment Tribunal claims – including unfair dismissal, discrimination and equal pay claims across a range of sectors.
Employment Tribunal Costs
The starting point in Employment Tribunals is that each party is responsible for its own costs.
The Tribunal does, however, have the discretion to order one party to pay the other’s costs if a they have acted vexatiously, abusively, disruptively or otherwise unreasonably or have made or continued with a claim that had no reasonable prospects of success.
The cost for bringing and defending claims will vary depending on a number of factors, including the type of claim, the complexity of the issues, the volume of paperwork, the number of witnesses involved and the length of the hearing.
We would normally suggest working on a fixed fee basis for Employment Tribunal Claims to enable you to understand and budget for your costs. If you would prefer to work on the traditional hourly rate basis, our hourly rate for Employment Tribunal litigation with effect from April 2022 is £280 per hour.
Employment Tribunal Claims can take many forms, from “straightforward” wrongful or unfair dismissal claims (e.g. arising from gross misconduct) through to complex discrimination and equal pay claims as well as claims in relation to deductions from wages, holiday pay and, in certain cases, breach of contract.
To provide you with a guide, we would normally categorise wrongful or unfair dismissal claims as Band A, Band B or Band C.
- Band A cases are straightforward wrongful/unfair dismissal claims which are expected to be listed for a hearing of one or two days.
- Band B cases are higher volume/more complex wrongful/unfair dismissal claims e.g. involving whistleblowing, automatic unfair dismissal which are expected to be listed for a hearing of three or four days.
- Band C cases are complex and high volume wrongful/unfair dismissal claims e.g. involving whistleblowing, automatic unfair dismissal, multiple Claimants/Respondents, large numbers of witnesses or volume of documents which are expected to be listed for a hearing of five to ten days.
The more complex the claim, the more time we have to spend dealing with it, which means the higher the costs. Examples of factors that usually make a case more complex (and expensive) include the following:
- There being a large number of witnesses (the more witnesses, the more time it takes to interview them);
- There being more than one person bringing or defending the claim;
- The longer the period of the hearing, the more time it will take to deal with the case;
- The nature and extent of the disclosure process (where each party searches for, lists and discloses their documents that are relevant to the claim) which can involve a large volume of documents and/or documents in different formats or from multiple sources (e.g. paper and computer records, telephone logs and emails);
- Where we have to deal with:
- applications to amend a claim, cost applications, applications to force an individual to be a witness or requests made by either party for additional documents relevant to the case;
- arguments about whether the Employment Tribunal has jurisdiction to hear the claim or complex preliminary issues, such as whether the person making the claim is an employee or worker or whether a person is disabled;
- requests for more information about an existing claim or defence;
- an individual bringing a claim against our client who isn’t legally represented; or
- claims that the dismissal itself was discriminatory (not including standalone claims of discrimination or allegations that there were a series of discriminatory acts which ended with the dismissal) or automatic unfair dismissal claims, e.g. if the claim is that the dismissal took place as a result of the person blowing the whistle on their employer;
- If you require face-to-face meetings rather than discussions by telephone.
For claims expected to be listed for more than ten days or for unfair dismissal claims which involve discrimination and/or equal pay we will agree bespoke fees with you which will reflect the complexity and additional work involved.
Stages of Your Claim.
We would normally break down your claim into three stages.
Stage 1 – Submit the Claim/Defence and early merits advice
- taking your initial instructions, considering the relevant documents and advising you on your likely success in bringing or defending the claim, including potential compensation (we will revisit this throughout the case as prospects may change);
- entering into pre-claim conciliation where this is mandatory to explore whether a settlement can be reached;
- preparing your claim or response to the claim (as applicable);
- reviewing and advising on the claim or response from the other party.
Stage 2 – Case Management Preliminary Hearing, disclosure of documents and agreeing a bundle of documents for use at final hearing
- preparing for and considering a schedule of loss;
- preparing for (and attending) a case management Preliminary Hearing;
- supporting you through the disclosure process;
- instructing an expert (expert’s fees are dealt with separately under disbursements below);
- exchanging documents with the other party and agreeing a bundle of documents to be referred to in the final hearing.
Stage 3 – Witness statements and hearing preparation and attendance at final hearing
- taking statements from the witnesses, drafting their statements and agreeing the content with them;
- reviewing and advising on the other party’s witness statements
- preparing the bundle of documents to be referred to in the final hearing;
- agreeing a list of issues, a chronology and/or cast list i.e. a list of ‘who’s who’;
- preparation and attendance at final hearing, including giving instructions to the barrister.
|Band||Type of Matter||Our fee* (plus VAT, Counsel’s fees and disbursements – see below)|
|Band A||Straightforward Unfair Dismissal claims||Stage 1 £1,500Stage 2 £2,500Stage 3 £5,000|
|Band B||Higher volume and more complex unfair dismissal claims e.g. involving whistleblowing, automatic unfair dismissal, which are expected to be listed for a hearing of up to three days||Stage 1 £2,500Stage 2 £4,000Stage 3 £7,500|
|Band C||Complex and high volume unfair dismissal claims e.g. involving whistleblowing, automatic unfair dismissal, multiple Claimants/ Respondents, large numbers of witnesses or volume of documentswhich are expected to be listed for a hearing of more than three days||Stage 1: £4,000Stage 2: £6,000Stage 3: £10,000|
* Our fee includes our legal costs for representing you through to a final hearing, including a remedy hearing (if required) including all calls, emails, meetings, case updates, conferences with Counsel and settlement negotiations.
We will continue to consider the practicalities of settlement throughout your case. If it is possible to reach a settlement on your case part way through a stage, we will agree a proportionate fee with you based on the work completed during that stage.
Our fee does not include VAT which will be charged the applicable rate (20%), Counsel’s fees, disbursements and our expenses which are covered in more detail below or, if additional stages are involved in your case, e.g a Preliminary Hearing which might result in all or part of a Claim being struck out or amended, costs applications or appeals we will agree bespoke fees with you which will reflect the additional work involved.
Employment Tribunal advocacy is a specialist skill and we will work with you to instruct the right Barrister (also known as Counsel) for your case.
We would normally represent you at a case management Preliminary Hearing, however based on the location of the Employment Tribunal for your case it may be more cost effective to instruct local Counsel rather than incur travel and/or accommodation costs. We will discuss this with you.
For Preliminary Hearingswhich might result in all or part of a Claim being struck out and for Final Hearings we will help you choose Counsel with the appropriate skills and experience for your case. Counsel’s fees are normally on the basis of a brief fee to include preparation and the first day of the Tribunal hearing with an additional fee for each subsequent day at Tribunal. Depending on the Counsel that you choose and the length/complexity of your case Counsel’s fees could be from as little as £500 to £10,000 or more (plus VAT). Again, we will discuss this with you and ensure that you are clear on Counsel’s fees before we instruct them.
Counsel’s fees will be subject to the applicable rate of VAT (20%).
Disbursements and expenses
Disbursements are costs related to your matter that are payable to third parties, such as fees for expert witnesses, Counsel’s fees (see above), travel and accommodation costs which will be subject to the applicable rate of VAT which in most cases will be 20%. We handle the payment of the disbursements on your behalf to ensure a smoother process and we will agree substantial disbursements with you in advance.
Where it is necessary for us to incur travel and/or accommodation expenses (to meetings and/or hearings) we will invoice you for those expenses, again subject to the applicable rate of VAT which in most cases will be 20% and we will agree substantial expenses with you in advance.
In many cases there is a benefit for both parties to consider settlement. This may be due to the strength or weakness of a case or it may simply be because the costs of proceeding to a Tribunal hearing outweigh the sums in dispute.
We will discuss the prospects for settlement with you during Stage 1 and we will continue to consider the merits of settlement throughout the process.
How long with my case take?
The time that it takes from our initial discussions to the final resolution of your case will depend largely on the stage at which your case is resolved.
If a settlement is reached during pre-claim conciliation, it should be possible to resolve matters within four to six weeks. If your claim proceeds to a Final Hearing, depending on the Tribunal, the steps necessary to prepare the case for final hearing and the length of hearing itself, it may take more than a year to do so. We will discuss this with you in more detail and keep you up to date with developments as your case progresses.
Funding for Employment Tribunal claims
It may be that you can recover your legal costs for bringing a claim from an insurer under an existing insurance policy that you may have, for example household contents insurance. We would encourage you to check any policies that you may have.