Fee guidance for the provision of advice and representation to Employees in relation to the bringing of claims before the Employment Tribunal against an Employer for Unfair Dismissal or Wrongful Dismissal (using the ACAS Conciliation service if appropriate).
Unfair Dismissal is where an Employer has dismissed an Employee (who has the appropriate length of service in order to obtain protection) in an unfair way or for an unfair reason and not followed a fair procedure.
Wrongful Dismissal is where an Employer has breached the Employee’s Contract of Employment in dismissing the Employee e.g. by failing to give or pay the appropriate contractual notice.
Free initial telephone conference for potential new clients
One of our Specialist Solicitors will always have a discussion on the telephone free of charge for a potential new client. This is important for a number of reasons. For example:
- We might be able to supply advice to avoid the need for legal representation;
- We may be able to advise on the availability of our ability to support with an application to an insurer who may be able to assist with the case and/or the costs of a case.
- Extremely urgent action may need to be taken because delay could be prejudicial to the employee’s case;
- The basic steps required can be explained, the costs likely to be involved and a rough cost benefit analysis can be carried out. This will enable an assessment to be made as to whether or not the case is likely to be of sufficient value to justify legal fees being incurred.
- Questions can be answered and advice given and most importantly if a meeting is required we can ensure that all the relevant information and documentation is brought to that meeting so that we can agree on the appropriate action to be taken and begin work straight away.
Charging on a time basis
This is our usual method of charging. We will always discuss with our clients the cost benefit analysis of the work we advise or that the client requires. The work can be tailored to the budget, resources and the requirements of the client.
Our hourly rates are for Kevin Basnett £230 per hour and for Angela Protheroe £215 per hour. Letters and emails in and out and short telephone calls are charged at 1/10th of the hourly rate i.e. £23.00 and £21.50 respectively and the preparation, drafting and advice work is charged pro rata the hourly rate in accordance with the time taken.
Between them Kevin and Angela have nearly 60 years of employment litigation experience.
Money on account and interim bills
We usually ask for money on account of costs before work is undertaken and we interim bill as the case progresses to avoid unforeseen large bills and to ease cash flow. This enables our clients to manage the work that is carried out and therefore the fees that are incurred.
Litigation Cost Funding and Legal Expenses Insurance
We will always advise on and make an enquiry as to whether or not this will be available. We can always advise on and prepare an application for insurance cover or litigation cost funding. Such arrangements are often provided for in domestic insurance products as an “add on”.
Their effectiveness and availability varies from insurer to insurer and sometimes the insurer will insist that their own nominated panel solicitors are therefore appointed. On occasions we will not take on this kind of work because the terms and conditions of the insurers are unacceptable to us and/or our clients.
If fixed fees are required we can provide these once we understand the case and are able to define and agree the specific work to be carried out under the fixed fee arrangement. Sometimes we can fix fees for specific agreed stages of the case or claim.
Steps and opportunities to be taken to avoid or reduce legal costs
During the conduct of the case and depending upon its nature and merits there will always be opportunities and we will always advise you on the options available to save legal costs. These may include settling a claim on the most cost advantageous terms, advising or supporting with self representation, restricting or limiting evidence to reduce the time at a Tribunal Hearing.
Range of Costs
Every case is different, all our clients are different and have different approaches to dealing with disputes. Some cases may require a one day Hearing and others may require Hearings that may run into several weeks. It is therefore impossible to give a clear indication of the likely costs in a general advice statement such as this.
Further, many cases may not simply involve unfair dismissal or wrongful dismissal but often have other claims linked to them such as failing to provide written terms of employment, unlawful deduction of wages, and discrimination claims.
Whilst the incurrence of costs may be reduced by limiting the extent or type of claims, at the outset that may not be advisable because it may have a defence or good argument against some of the claims and the Tribunal may not allow the client to amend or supplement claims later on during the case.
However, as a guide we set out below the likely level of fees for a straightforward case which is not unduly complicated.
(a) Instigating a Claim
Carrying out a brief analysis of your case and an approximate valuation of the potential value of the claim and if there appears to be merit in doing so advising you in relation to the making of a Pre-Claim Conciliation Referral to ACAS. This step is necessary if you wish to go on later to make a formal claim to the Employment Tribunal.
If you do not make a referral to Pre-Claim Conciliation you will not be allowed to make a claim to the Employment Tribunal. To assist and support you in this process will depend upon how much specialist support you would like or whether you would wish to do it yourself and the fees are likely to range between £500 to £1,000 plus VAT subsequently there may also be scope for negotiating a settlement via ACAS.
Additionally we can assist you by preparing a Letter before Action to your employer which will set out the heads of claim and a without prejudice offer of settlement.
(b) Drafting Pleadings
Obtaining from you a history / statement of case so that we can understand the basis of your claim, investigating the merits of the claim with you and advising you of the potential chances of success and obtaining from you relevant documentary evidence to support your claim together and drafting and lodging your claim with the Employment Tribunal (Form ET1) - £1,000 to £1,500 plus VAT.
(c) Reviewing claim and advising on Employment Tribunal process
Considering any defence (ET3) that the Employer may file with the Tribunal and taking your instructions on that defence and then advising you of the merits of the defence and any appropriate steps that should be taken on your behalf next.
Such steps may include seeking formal admissions from the Employer or specific documents or disclosure from the Employer which may assist your case or if the defence seems particularly weak, making requests for further and better particulars of the defence and if appropriate advising you on making a Data Access Request . The likely fees in this area are usually £500 to £1,000 plus VAT.
Sometimes the Tribunal may decide to hold a Preliminary Hearing or the Employer, if they believe your case is weak will seek a Preliminary Hearing in order to try to persuade the Tribunal to strike out your case or seek a Deposit Order.
A Deposit Order is where the Tribunal will seek to deter you if it considers you have a weak case by ordering you to pay a deposit (often a few hundred pounds) to the Tribunal if they wish to continue. This serves as a “cost warning” and if you continue and lose you will forfeit the deposit and may be at risk of having to pay the Employer’s costs in the event that the Employee losing their claim at the Trial (see below).
Often such a Preliminary Hearing is used by the Tribunal to give “Directions for Hearing” about how many witnesses can be called, how long the trial is allowed to last, the exchange of witness statements etc. Sometimes these Hearings take place at the actual Tribunal and sometimes they are dealt with over the telephone and therefore the cost incurred can be variable.
The parties may also be required to complete a Case Management Agenda prior to the Hearing. The information will enable the Tribunal to understand your claim. The fees may vary between £600 and £2,200 plus VAT dependent upon the complexities and the location and whether they are dealt with by telephone or not.
If appropriate and if so instructed, negotiate via the ACAS Conciliation Service in an attempt to settle the case on agreed terms including dealing with such matters as an agreed reference (if this is possible), the return of personal property and effects and dealing with other benefits or areas of remuneration such as pension, company car, bonuses and commission etc - £800 to £1,500 plus VAT.
We will also advise you on any settlement terms and documentation regarding settlement.
(e) Disclosure of Evidence
Dealing with the disclosure documentation relevant to the case which has to be exchanged between the respective parties and attending to that exchange. Also inspecting / reviewing the documents received from the Respondent (Employer) and advising thereon - £800 to £1,600 plus VAT. Every document or piece of information that is relevant and which might enable the Tribunal to reach a fair decision could be disclosed by the relevant parties and made available to the other party.
(f) Witness Statements
Preparation of relevant witness statements and exchange and service of the witness statements before the Tribunal Hearing - £500 to £2,000 plus VAT dependent upon the number of witnesses and how complicated the case is.
(g) Trial Bundle
Preparing the bundle for the Tribunal Hearing. Normally the Tribunal orders that it is the Respondent Employer’s obligation to prepare the Tribunal bundle for the purpose of the Tribunal and the parties and the witnesses at the Hearing. However it is important that you ensure that the bundle is prepared correctly and contains all the relevant documents to enable the Tribunal to make a proper decision - £350 to £700 plus VAT.
(h) The Final Hearing
Preparation for representation at the Hearing - £750 to £1,250 plus VAT dependent upon the complexity of the case.
(i) Representation at the Hearing - £1,000 to £1,500 plus VAT per day.
The awarding of costs in Tribunal Cases
Unlike most civil litigation the winner in the Employment Tribunal case is not normally awarded their costs to be paid by the other side. The general rule is that each party bears their own costs. If a party can be shown to have behaved extremely badly during their conduct of the litigation, then sometimes costs may be awarded against them but this is extremely rare and cannot be relied upon.
In the event that a Deposit Order is made against you (see above) as this serves as a warning that in the Tribunal’s opinion the case is weak then costs may be awarded against you in the event that the Employer wins.
If the extent of those costs cannot be agreed then they will be determined by the Tribunal. It is important, therefore that if you have a weak case and the Employer / Respondent has a strong case that you are mindful that attempts to settle the claim may reduce their overall outlay on costs and may enable them to recover compensation which they may not ultimately get at Trial.
Aggravating or complicating factors that may add to costs
Often you may be advised to bring other claims as well as claims for wrongful dismissal or unfair dismissal. Commonly they may include a failure by the Employer to provide written terms and conditions of employment.
If this is proved at the Tribunal then this can lead to an additional award to you because there is a requirement under the Employment Rights Act for the Employer to provide written terms and conditions of employment.
Sometimes, also the Employer may have failed to make various payments to the Employee or provided them with holiday pay which also can amount to additional claims.
Often claims for unfair dismissal, in particular, are linked to claims by the Employee that they have raised grievances, there has been some form of discrimination, they have asserted a statutory right or been a whistle-blower e.g. on health and safety issues etc, all of which may complicate matters and add to the costs.
Disbursements – Fees payable to third parties
At present, there are no fees payable to the Employment Tribunal. However, at the time of producing this document the Government is currently considering reintroducing Employment Tribunal fees.
On rare occasions the Tribunal may order a party to pay costs to the other side particularly if they have behaved badly in the course of the litigation.
However, there may be other expenses or fees payable during the conduct of the case and these may include travelling expenses, payment to another party for photocopying and courier services, witness expenses, Barrister’s fees if Barristers are instructed.
Sometimes it is more effective to instruct a Barrister to conduct a trial than using a Solicitor or ourselves. This is because it is possible to agree fixed fees for the whole case or a daily rate and they may be more effective at a trial because they spend most of their time and are specialists in preparing for and conducting Tribunal Hearings.
Their fees range widely, dependent upon the depth of their experience and specialism. The lowest fees tend to be around £800 per day plus VAT but for the very best specialist the fees can be much higher. It is very important to ensure that so far as is possible the right Barrister at the right level of expertise is instructed.
The fees are always agreed beforehand and payment on account of Barrister’s fees before they are instructed will always be required.
If a case is particularly complicated we may recommend obtaining a Barrister’s Advice or a Conference with a Specialist Barrister before the final Hearing. Again fees for this will vary depending on the Barrister’s experience and specialism.
These fees will also be agreed with you in advance, and payment on account of costs will always be required.