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Knocker & Foskett

Employment Tribunal Claims: Fees and Services - guidance for employees and employers

For our individual and business clients, bringing or defending claims for unfair or wrongful dismissal, the information outlined below sets out the employment-related litigation advice and services we provide and gives a broad indication of the level of fees which we are likely to charge our respective employee and employer clients for the work we carry out in relation to proceedings in the Employment Tribunal.

•    Employment litigation services  
•    Solicitors in our Employment Department
•    Guide costs
•    Employment Tribunal cases: key stages 
•    Typical timescales 

Employment litigation services  
Our costs are based upon the factors set out in our Terms of Business. We do not provide fixed fee litigation services for bringing and defending claims for unfair or wrongful dismissal / breach of contract in the Employment Tribunal and our firm’s fees are based on the actual amount of time the work takes. 

Frequently it is extremely difficult to estimate how much time is likely to be involved in dealing with a particular claim because at the outset we will not know how things may develop in Employment Tribunal proceedings. The timescale and the costs involved in pursuing and defending claims for unfair or wrongful dismissal is very much dependent on the attitude of the other party.  As each case is different, the particular steps required and the timetable to be followed will depend on the facts and circumstances and the nature of the parties’ dispute. There are also factors that cannot be predicted in advance; such as action taken by the other side, evidence that emerges during the case and directions or orders given by the Employment Tribunal, etc. Sometimes, for example, it may become necessary to amend the formal pleaded basis for a case or make or defend applications. For the same reasons, it is often difficult to provide clients with a precise estimate of the length of time that their matter is likely to take and anticipate what disbursement expenses are likely to be incurred.  

The time and cost that it takes to reach the conclusion of your matter depends largely on the complexity of the claim for unfair and/or wrongful dismissal and the stage at which your case is finally resolved. 

Solicitors in our Employment Department 
We have 2 very experienced solicitors in our firm’s Employment Department (and depending on the type of the case other litigation solicitors may be involved too). The main solicitors specialising in employment litigation work that could be involved in your matter are Chris Hugo (Partner and Head of Department, hourly rate £295); Finan Davern (Senior Solicitor and qualified Notary Public, with an hourly rate £282). VAT must be added to these costs when the work is billed.  Between them, these 2 solicitors have in excess of 30 years' collective legal experience in delivering high quality work in employment-related litigation practice. Our solicitors have particular expertise in cases of bringing and defending claims for unfair or wrongful dismissal / breach of contract in the Employment Tribunal, and where appropriate we are experienced in negotiating out-of-court settlements on favorable terms.

We are happy to consider bringing or defending potential claims with individual and business clients, explore the issues in dispute and advise on the likely timescale and our estimate of the costs which are likely to be involved in their particular matter

Guide costs 
As a very broad guide we anticipate that the range of average litigation costs for advising in connection with bringing and defending claims for unfair or wrongful dismissal depending upon their complexity in the Employment Tribunal, might be along the following lines (exclusive of VAT and disbursements):

The estimated break down of our fees:
•    Straightforward case: £1,750-£3,500 
•    Medium complexity case: £5,500-£8,750 
•    High complexity case: £10,750-£25,000 

In this regard, factors that could make a case more complex include as follows:

•    If it is necessary to make or defend applications to amend claims or to provide further information about an existing claim
•    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)
•    Whether the case involves large numbers of witnesses 
•    The number of documents or complex factual or legal issues
•    If it is an automatic unfair dismissal claim e.g. if the employee was dismissed after ‘blowing the whistle’ on their employer 
•    Allegations of discrimination or if there are other claims being brought within the unfair/wrongful dismissal claim in relation to some other unlawful detriment, which are linked to the dismissal.

There will be an additional charge for our attending an Employment Tribunal Final Hearing of £1,000 per day (excluding VAT). Generally, we would allow 1-2 days, depending on the complexity of your case. 

NB - please note that in each case, VAT must be added to these costs. The solicitor costs do not include the separate disbursement expenses that are payable to third parties, such as any barrister’s fees and expert’s fees and ‘After the Event’ insurance cover. 

Disbursement expenses 
In addition to the solicitor’s fees, it is often necessary for a client to pay ‘disbursements’ – i.e., costs related to your matter that are payable to third parties. In some claims, expert evidence is required, and this might involve further fees payable to that expert for their work for the Employment Tribunal. We would normally handle the payment of the disbursements on your behalf to ensure a smoother process.

The main disbursements are usually the barrister’s fees. We would ordinarily recommend that a barrister is instructed to be advocate at any hearing. This is often the most cost-effective way of making sure you are represented at a hearing. In most types of cases, barristers usually charge a ‘brief fee’ which, depending on the seniority of the barrister and the complexity of the case, is approximately equivalent to an hourly rate charge of £150-£285 plus VAT. Counsel's estimated fees might range between £1,250 to £2,750 plus VAT per day (depending on experience of the advocate) for representing a party a Tribunal Hearing (including their preparation work beforehand). This covers the barrister’s time for advance preparation for, and attendance at, the first day of any Tribunal hearing. In multi-day cases, a barrister is also likely to charge a ‘refresher’ fee for subsequent days required in representing a party at a hearing in Employment Tribunal proceedings.

We will also consider with clients whether they may have other funding options available, such as the benefit of pre-purchased legal expense insurance or some other facility, such as a trade union, which might cover the costs of bringing or defending claims and we will check that with them at their first appointment, since insurance cover is unlikely to operate until such time as the insurer has approved the claim and sanctioned the work. In addition, almost all insurance policies contain what are generally known as ‘claims control’ and ‘claims co-operation’ clauses which, as a matter of contract between the client and their insurers oblige the client to co-operate with your insurers, including in relation to the determination of a claim, whether to settle it and, if so, for how much and similar issues.  Clients should consult the relevant insurance policies if they are in any doubt about their position.  

We do not usually undertake instructions and carry out work in employment claims under a conditional fee agreement (CFA) or damages-based agreement (DBA), but if clients want us to act on such a basis in Employment Tribunal proceedings it will be necessary for us to assess the viability of their case before we agree to accept it. 

Employment Tribunal cases: key stages
To help put matters in context, including the legal costs and timescale, the following key stages are typically involved in claims for unfair and wrongful dismissal in the Employment Tribunal:
•    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)
•    Dealing with any detailed investigations, including instructing third parties and barristers
•    Entering into pre-claim conciliation where this is mandatory to explore whether a settlement can be reached
•    Sending pre-action correspondence e.g. a letter before action or a letter of response
•    Preparing the ET1claim form outlining the factual detail of your case and the legal basis for it 
•    Preparing the ET3 response form when a claim has been made against you
•    Reviewing and advising on claim or response from other party and advising on litigation strategy
•    Exploring settlement and negotiating settlement throughout the process 
•    Preparing or considering a Schedule of Loss
•    Preparing for (and attending) a Preliminary Hearing and any direction / application hearings in relation to provisional decisions given during the course of Employment Tribunal cases 
•    Exchanging documents with the other party and agreeing a bundle of documents
•    Taking witness statements, drafting statements and agreeing their content with witnesses 
•    Reviewing and advising on the other party's witness statements
•    Preparing the paginated bundle of documents for the Final Hearing
•    Agreeing a list of issues, a chronology and/or cast list and relevant case authorities
•    Preparation for and attendance at the Final Hearing, including instructions to your barrister 
•    Any further necessary steps in connection with the Employment Tribunal proceedings and enforcing Judgment, including serving a statutory demand, commencing bankruptcy or winding-up insolvency proceedings

The stages set out above are an indication of the broad steps in terms of bringing and defending claims for unfair and wrongful dismissal in Employment Tribunal proceedings and if some of these stages are not required, then the time involved and the legal fees would be reduced accordingly. Also, you may wish to handle some aspects of the claim yourself and only have our advice in relation to some of the stages.  This can be arranged for your individual needs. Conversely, when an unforeseen complexity arises or where the way in which a client asks us to proceed means additional work, this is likely to increase the overall costs in a client matter.

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. This is likely to depend upon the complexity of the claim for unfair/wrongful dismissal in the Employment Tribunal, including any allegations of discrimination, and whether the case involves large numbers of witnesses or documents or complex factual or legal issues and, of course, whether or not the claim is being vigorously disputed, etc. 

If a settlement is reached during pre-claim conciliation, your case is likely to take between 2 to 4 weeks; whereas if your claim proceeds to a final hearing in the Employment Tribunal, your case is likely to take 6 to 9 months. 

However these are rough estimates only and as each case is different our employment litigation team will be pleased to discuss matters with you and advise in relation to the relevant timescale in your matter.  In particular, any allegations of discrimination and certain other factors, such as claims being brought within the unfair/wrongful dismissal claim in respect of an unlawful detriment which are linked to the dismissal, could make a case much more complex and impact on the likely timescale and the costs estimate. We will be able to give you a more accurate timescale once we have more information and as the matter progresses.  
 

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