Before commencing a claim, most claimants will have to notify ACAS of a potential claim by using the correct channels and obtain a certificate number. This is known as Early Conciliation and this became mandatory for most Employment Tribunal claims on 6th May 2014.
An employee or worker commences a claim by completing an ET1 form and sending this along with particulars of the claim to the relevant employment tribunal. Unless the employee or worker qualifies for a remission, he or she will have to pay a Tribunal fee to issue the claim. There is also a hearing fee payable closer to the hearing date. The employee is referred to as the Claimant within the legal proceedings. The Tribunal will then process the form and send a copy to the employer who is referred to as the Respondent. The Respondent has to reply to the Tribunal within 28 days from the date that he was sent a copy of the claim.
Once the Tribunal receives the Respondent’s response, it will send a copy of it to the Claimant. The Tribunal will then usually issue directions and orders for the parties to comply with before the final hearing date. This will usually include dates for the preparation of a list of documents, disclosure of these documents, preparation of an agreed hearing bundle and exchange of witness statements.
The Tribunal may list the case for a Preliminary Hearing if it considers there are matters of procedure and/or management and/or preliminary issues that should be decided by the Tribunal. An Employment Tribunal may list the case for a Preliminary Hearing to determine whether a claim should be struck out for having no reasonable prospects of success.
The final hearing will be heard either by an Employment Judge sitting alone or by an Employment Judge and two lay members. Every witness present for either the Claimant or Respondent will give evidence, usually by way of a witness statement. The other party will then have an opportunity to cross examine the witness and the Tribunal members may also ask the witness questions. After one party’s witnesses have all given evidence, the other party’s witnesses will give evidence and the procedure is repeated. Once all the evidence has been given, each party will have an opportunity to sum up the evidence and provide legal submissions. The tribunal will then decide whether the claim has been successful and, if so, will decide on the remedy including any sum of compensation to be awarded to the Claimant.
At the Employment Tribunal the general rule is that each party will bear their own costs. However, there are circumstances where an Employment Tribunal must make a costs order and circumstances where a Tribunal may make a costs order. Over the years, the number of successful costs applications has increased. The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, Schedule 1, Rule 76, provides the basis upon which a costs order must or may be made against a party. The circumstances are as follows:
A preparation time order is an order of the payment for the sum of money to a party who is not legally represented in respect of the preparation time incurred at a set hourly rate. The hourly rate as at 6th April 2013 is £33 which increases by £1 on 6th April each year. The rules in relation to preparation time orders are almost exactly the same as the rules that apply for costs.
A Tribunal or Employment Judge may make an award against a party’s representative for wasted costs pursuant to Rule 80. Wasted costs are defined as costs incurred by a party which:
the tribunal considers it unreasonable to expect that party to pay.
The costs to bring a claim or defend a claim for wrongful dismissal and unfair dismissal can vary considerably depending on the complexity of the case. Our time is charged at an hourly rate which ranges from £192 inclusive of VAT for a paralegal to £348 an hour inclusive of VAT for a Director.
As a rough indication, a claim to bring or defend a claim for unfair dismissal could range from around £10,000 to around £16,000 inclusive of VAT based on the aforementioned hourly rates. For wrongful dismissal, the costs could range from between £4,000 to £8,000 inclusive of VAT. However, costs could be lower or higher in exceptional circumstances. Typically this would be in circumstances of the case bring extremely straightforward, very complex and/or involving a high volume of documentary evidence. In addition to the aforementioned, you would also expect to pay barrister’s fees to represent you at final hearing, the cost of which would depend on the number of days the case were listed for. For a 1-day hearing, you may expect to pay in the region of £1,500 to £2,000 inclusive of VAT for a barrister to represent you. However, in exceptional circumstances, it could be lower or higher than this sum. The cost would be higher if it were listed for 2 or more days. The cost of the barrister will also vary, to a certain degree, based on his or her seniority.
Typically, a case for unfair dismissal or wrongful dismissal would be handled by a Director or Solicitor and a Paralegal or Trainee Solicitor would work on certain aspects of the case to maximise efficiency.
For a reasonably straightforward claim of unfair dismissal, you are likely to have a hearing date listed within a period of between 3 and 6 months of the date that you lodged your claim. For a reasonably straightforward claim of wrongful dismissal, you are likely to have a hearing date listed within a period of between 2 and 4 months of the date that you lodged your claim. However, it is possible that it could be longer and is subject to the number of claims being heard by the tribunal and number of available Employment Judges at the relevant time. Your case could settle at any time which may result in your case coming to an end much sooner.
An employee who is claiming (amongst other things) loss of earnings arising from a claim is expected to mitigate their losses. In the context of loss of earnings, this is interpreted as taking reasonable steps to secure suitable alternative employment. The question of whether the employee has taken reasonable steps to mitigate is a question of fact for the tribunal. If the employer wants to argue that the employee has not done so, the burden is on him or her to prove it. One way of attempting to do this would be by providing evidence of any jobs which the employee could have applied for or carried out. However, if the employer wants to prove that the employee failed to mitigate his or her losses he must show that the employee acted unreasonably in not taking reasonable steps to secure alternative employment. If a tribunal finds that a employee has unreasonably failed to mitigate his or her loss, compensation may be reduced by a figure which the tribunal considers appropriate.
There are two main methods of settling an employment tribunal claim and they are:
An Acas conciliator is a neutral party. He or she may discuss the issues with both parties with a view to attempting to resolve matters. He or she may also:
A conciliator should not:
If the case is settled via an Acas conciliator, it is concluded by both parties signing a COT3 agreement. However, the agreement becomes legally binding once both parties have agreed settlement wording which is usually before the COT3 has been signed.
As part of a settlement agreement, an employee may want to incorporate a reference so that he or she can be sure that the wording of this reference will be communicated to any prospective or future employer.
A claimant must present a claim to an employment tribunal within certain time limits. The time limit for unfair dismissal is three months from (and including) the effective date of termination.
Most other (but not all) time limits are 3 months and the date that the time limit runs from will depend on the nature of the claim. This could be one of the following, amongst others:
In relation to a claim for unfair dismissal, amongst other claims, a Tribunal may extend time by such further period as the Tribunal considers reasonable if it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of 3 months.
In relation to discrimination claims pursuant to the Equality Act 2010 (amongst other claims), a Tribunal may extend time by such period that it thinks is just and equitable.
Although a Tribunal can extend time, its decision to do so is dependent upon the facts and law applicable to those facts as determined by the Tribunal.
We strive to provide an outstanding service and hope that you will never have any cause to complain against our firm.
In the first instance it may be helpful to contact the person who is working on your case to discuss your concerns and we will do our best to resolve any issues at this stage. If you would like to make a formal complaint, then you you should send us an email indicating that you wish to formally complain. We will then endeaour to respond with an initial acknowledgement within 7 days, endeavour to complete an investigation within a further 21 days and endeavour to provide a full response within 28 days of receiving full details of the complaint.
If you are not satisfied with our decision, you may have the right to escalate your complaint to the Legal Ombudsman. The Legal Ombudsman Service will independently assess whether there is, in their opinion, any poor service. Once your complaint has been accepted, an Investigator of the Service may carry out an investigation and prepare a recommendation report which will conclude whether the complaint has been upheld. If the complaint has been upheld, the Investigator will suggest a remedy. If both parties accept the conclusions of the report, the matter is usually at an end. If either party does not accept the recommendation report, the matter will then usually be referred to an Ombudsman for a formal decision. Click here for the Legal Ombudsman Service website where you will be able to further contact details and how to complain.
The Solicitors Regulation Authority can help you if you are concerned about our behaviour, for example, dishonesty.
Click here for the website of the Solicitors Regulation Authority and for details of how to complain.
Below are various Acts of Parliament relevant to employment law.