What is involved in bringing an employment claim?
The procedure will depend to some extent on the type of claim you are seeking to bring. For example, some claims for breach of contract that are high value may be more suitable for the High Court or a county court than an employment tribunal. Claims to enforce post-termination restrictions in an employment contract would also be brought outside of the employment tribunal system.
Discrimination claims, such as disability discrimination, sex discrimination, race discrimination, etc, will often be listed for at least one preliminary hearing whereas claims for unfair dismissal or unpaid wages may proceed directly to a final hearing.
For the vast majority of claims you are bringing, there will generally be a standard process, which can be summarised as follows:
- Employee notifies ACAS under early conciliation notification procedures;
- ACAS contact the parties to see if the case can be resolved at this stage;
- If the case doesn’t settle, ACAS issues a certificate;
- The employee presents a claim to an employment tribunal (known as an ET1 claim);
- The Respondent responds to the claim by the date notified by the tribunal (the response is called the ET3);
- The Claimant submits a schedule of loss;
- Both parties have to send copies of relevant documents to each other. Depending on the tribunal’s orders, this can sometimes be done by compiling a list and then asking the opponent to identify the copies they need;
- Normally the employer (respondent) will be asked to prepare the paginated bundle of documents for use at the hearing, but if the employee (claimant) has a legal representative and the respondent doesn’t, then the tribunal may ask the claimant to prepare the bundle.
- The parties then have to exchange witness statements. These are the statements that witnesses will be giving as their evidence at tribunal. Depending on the number of witnesses being called and the complexity of the issues, this can be a significant task;
- Throughout the process, the tribunal may make orders to help it manage the case more easily. These orders can include;
o Requiring a party to clarify its case by providing what is known as Further and Better Particulars of the claim.
o Requiring the parties to agree a list of issues.
o Requiring the parties to agree a cast list of people involved or a chronology of key events in the case;
o Requiring the parties to submit skeleton arguments setting out a summary of the legal basis as to why the case should succeed or fail.
- The case then reaches the final hearing where the tribunal will hear the evidence and legal submissions and then decide whether the claim succeeds or fails. If it s
ucceeds, the tribunal will decide how much to award the claimant.
- Occasionally, but generally quite rarely, the tribunal might order one party to pay some or all of the other party’s costs. This is normally where one party is found to have been dishonest in their evidence or to have brought or defended the case in a way that is unreasonable.
What are Morecrofts’ costs likely to be for representing an employee in a tribunal case?
When we are contacted by an employee (claimant), one of the first things we will do is establish how the client wishes to fund the work we are carrying out for them.
If the employee has home insurance (or another form of insurance) that covers employment claims, then so long as the prospects of success are sufficiently good and the insurers have been notified in good time, the case can be funded through insurance. Although the insurers may try to direct the claimant to their own panel of solicitors, from the point when a claim is to be started, the insurers are obliged to give the employee the right to choose their own solicitor, so long as we agree to their terms (which we usually do).
If the value of the potential claim and the prospects of it succeeding are sufficiently high, we can consider whether we can take on the matter under a damages based agreement, which can also be known as a contingency fee agreement or a “no win, no fee” agreement. The way this works is that to cover our fees, we take an agreed percentage of whatever monies we manage to obtain for you (either by settlement or tribunal award). In many cases, this will be 35% if tribunal proceedings are commenced but can be lower if the value of the claim is likely to be particularly high or if there is a number of claimants bringing a group claim and we act for each of them.
If we are not acting for you through your insurance or under a damages based agreement, we will normally proceed on the basis of our hourly rates or under an agreed fixed fee. Our hourly rates for the work we carry out are:
Partner: £250 + VAT;
Solicitor/Legal Executive: £200 + VAT;
Trainee solicitor/employment law adviser: £130 + VAT to £150 + VAT.
If you are paying us based on our hourly rates or at a fixed fee, the estimated cost for running a claim to an employment tribunal, including the hearing itself based on a one day hearing, is £4,500 + VAT to £7,500 + VAT. For each additional day a hearing lasts, the costs are likely to increase by approximately £750 + VAT to £1,500 + VAT per day.
In cases of unusual complexity, such as a high value claim, or where the volume of communication between ourselves and the client significantly exceeds what we might have anticipated for a claim of that nature, the costs might even exceed £7,500 + VAT.
The above estimates include barristers’ fees for the hearing if a barrister is instructed to represent you. They do not include other payments that you might have to make to third parties, such as medical experts.
We are obliged to keep clients fully updated as to the costs of their matter on a regular basis and we consider it important that we do so.
Who will carry out the work on my matter?
Your case will be supervised by Charles Millett, partner and head of our employment team. Charles has been a qualified solicitor since 2002 and has specialised in employment law throughout that period. Charles’ profile can be found here.
Charles is assisted by Sarah Hobson, an Associate FCILEx (Legal Executive), who has worked in the field of employment law for over 10 years. Sarah’s profile can be found here.