Fee guidance for the provision of advice and representation of Employers in relation to defending claims for the Employment Tribunal brought by an Employee for Unfair Dismissal or Wrongful Dismissal (using the ACAS Conciliation service if appropriate).
Unfair Dismissal is where an Employee alleges that they have the necessary qualifying length of service to bring a statutory claim for Unfair Dismissal and that they have been dismissed unfairly by the Employer because the Employer has not behaved in a fair and reasonable manner in the way in which they have gone about the dismissal or the dismissal is outside the band of reasonable responses of a reasonable Employer in the circumstances of that particular case.
Wrongful Dismissal is where the Employer acts in breach of Contract in dismissing the Employee e.g. by failing to give or pay sufficient notice when terminating the Employee’s employment.
Where an Employee does not have the necessary qualifying length of service to bring a statutory claim for Unfair Dismissal, Employers should be aware that they could, in some circumstances, have a claim for Auto Unfair Dismissal.
This could include dismissal on the grounds of pregnancy or where an Employee asserts that they have whistleblown.
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;
- Extremely urgent action may need to be taken because delay could be prejudicial to the client’s case;
- Failure to submit your defence (ET3) in time to the Tribunal could result in you being debarred from taking part in the proceedings;
- The basic steps required can be explained, the costs likely to be involved and a rough cost benefit analysis can be carried out;
- 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 and 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. Between them they have nearly 60 years of employment litigation experience.
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.
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.
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.
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 of the options available to save legal costs.
These may include considering whether you have any litigation insurance, making an application to strike out a claim, particularly where it is weak or ill-founded, settling a claim on the most cost advantageous terms, self representation, re-engagement or reinstatement to avoid the claim / losses continuing to run, restricting or limiting evidence to reduce the time at a Tribunal Hearing.
If the estimated legal costs of defending the claim to a final Hearing are likely to be more than a potential award we will always discuss the merits of a Commercial Settlement with you.
Range of Costs
Every case is different, all our clients are different and have different approaches to dealing with disputes and some cases may require a one day Hearing whilst 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.
However, as a guide we set out below the likely level of fees for a straightforward case which is not unduly complicated.
(a) Claim Review
Reviewing the Tribunal claim papers you have received, taking your instructions, and obtaining from you relevant documentation and drafting and lodging the defence to the claim - £750 to £1,500 plus VAT.
(b) Application to Strike out the Claim
If appropriate, and, if we advise that the claim against you is weak, lodging, requesting and dealing with a Hearing to strike out the Claimant’s claim or seeking an Order compelling them to pay a financial deposit into the Tribunal if they wish to proceed.
The deposit is a warning from the Tribunal and a deterrent to proceeding because the Tribunal thinks they may well lose at the eventual trial.
This puts the Claimant at risk of having to forfeit the cost of the deposit if they proceed to trial and eventually lose. These Hearings are sometimes dealt with by telephone or sometimes in person at the Tribunal.
A Tribunal normally requires the preparation of a bundle of documents so that it can determine the issue on the basis of those documents and having heard argument from the parties’ representatives.
The fees may vary from £500 to £2,000 plus VAT dependent upon whether it is by telephone, how complicated it is, or attendance at the Tribunal is required.
(c) Case Management
Frequently the Tribunal will require a Case Management Hearing so that they can gauge and make appropriate Orders that govern the conduct of the case including what documents need to be disclosed and/or are relevant to the case, the size of any Tribunal bundle that is required and how many witnesses each party can call and the eventual length of any fully contested trial.
Prior to that Hearing the parties are required to complete a Case Management Agenda document which will then enable the Tribunal to understand the case.
Sometimes these Hearings are conducted over the telephone, sometimes they have to be conducted in person and therefore the costs can vary quite considerably say between £800 to £1,500 plus VAT.
Sometimes the Tribunal issues automatic Directions without any application from either party and this obviously saves costs but the Directions do have to be complied with.
If appropriate and if so instructed, negotiate via the ACAS Conciliation Service in an attempt to settle the case on agreed terms and drafting a COT3 or other settlement documentation - £750 to £1,250 plus VAT.
(e) Disclosure of Evidence
Deal with disclosure of documentation relevant to the case which will have to be exchanged between the respective parties and attending to that exchange. Also inspecting / reviewing of the documents received from the Claimant and advising thereon - £800 to £1,600 plus VAT
(f) Witness Statements
Preparation of relevant witness statements and exchange and service of the witness statements before the Tribunal Hearing - £1,000 to £3,000 plus VAT dependent upon the number of witnesses.
(g) Tribunal 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 - £800 to £1,600 plus VAT.
(h) The Final Hearing
Preparation for representation at the Hearing - £500 to £1,000 plus VAT dependent upon the complexity of the case.
(i) Representation at the Hearing - £1,000 to £1,500 plus VAT per day plus disbursements.
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 (see above) then some, if not all the costs, will be awarded to the winning employer and if the extent of those costs cannot be agreed they will be determined by the Tribunal.
It is important, therefore, that if the Claimant Employee has a strong case and the Employer and/or the Employer a weak case that the Employer is mindful that attempts to settle the claim may reduce their overall outlay.
Aggravating or complicating factors that may add to costs
From the Employer’s view point litigants in person i.e. people bringing their own claims without the benefit of legal advice can be problematic as there is often an unrealistic estimation of the value of the case, and the amount of work involved in bringing the case to trial.
This can add to the eventual cost due to the amount of work involved in additional communications or the inability to settle it by negotiation.
Mixed claims including other elements such as failure to provide proper terms and conditions of employment, unlawful deduction from wages, and discrimination claims can make the cost more expensive because there will often be more paperwork and additional different arguments that need to be addressed within the Tribunal process and at trial.
Disbursements – Fees payable to third parties
There are no fees payable to the Employment Tribunal. 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, Barrister’s fees if Barristers are instructed.
Sometimes it is more cost 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 specialist 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 but for the very best specialist the fees can be much higher. It is very important to ensure that as far as 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.