Employment Law FAQs

Constructive dismissal is where an employee can treat themselves as having been dismissed because of a fundamental breach of contract by the employer. You may be able to make a claim for one serious breach of your contract, for example, if your employer refuses to pay you without good reason. Alternatively, you may have left your job after the last straw in a series of smaller breaches, which become serious when viewed collectively.

Following these guidelines can help reduce the risk of an employment tribunal, although all situations are different; get specialist legal advice for your own situation.

• make sure you use the right documentation such as employment contracts, job descriptions and policies and procedures in a staff handbook.
• Follow the ACAS Code for disciplinary and grievance procedures and principles of best practice, ensuring you act promptly and consistently
• Be mindful of employment rights, such as rights not to be discriminated against; some forms of discrimination are obvious, but others are less so. Ensure you have an equal opportunities policy
• provide staff with ways to raise concerns early via grievance and whistleblowing policies and procedures
• provide written feedback on staff performance 
• follow your own procedures which should be written down and consistently applied as necessary to all staff
• take action if you receive a complaint, by following due process promptly, and investigating it properly
• be fair and reasonable at all times
• keep a written record, to demonstrate that you have acted properly.

• Stay calm and get specialist legal advice quickly; it’s probably best not to try to ‘go it alone’ without a lawyer, if the case is complex
• Check whether you have any legal expense insurance – you will normally be responsible for your own costs regardless of the outcome
• engage in the ACAS early conciliation process that all employees must follow before submitting a claim.  It aims to help people settle the argument without going to an employment tribunal. Meaningful negotiations can result in matters being settled without the need to go to tribunal (and avoiding the associated time and costs of going to trial)
• you must acknowledge the claim and respond within the deadline which is usually 28 days
• On the form you must complete the mandatory element of the response (the ET3 form), communicate all the facts, refer to everything the employee is claiming and be accurate about anything you write down, to resist the claim
• collect written evidence such as notes form meetings, performance reviews etc.

An employment tribunal is like a court, specifically for handling employment disputes where an employee is bringing a claim against his or her employer. It’s made up of a judge sitting alone or a panel of three people, one of whom will be a judge, who will be legally qualified in employment law; the other two are lay members – that is, not judges or lawyers by profession, although they will have experience in employment issues.  One will be an employee representative, and the other an employer representative. Some cases can be heard just by the judge.  Cases of discrimination must be heard by three judges. Although it’s not a requirement to have a lawyer represent you, most people choose to have legal representation.

There is no fee for taking a case to an employment tribunal.  In 2017 the Supreme Court judged that the law at that time, which stated claimants must pay, was unlawful. However, most people choose to get a lawyer to help them and of course this means there are legal fees to pay.  Your insurance or membership of a trade union may cover some of the costs. In general, both sides will pay for their own legal costs, regardless of whether they win or lose.  This helps employees who often have fewer financial resources than employers, to access the employment tribunal system. That said, it’s possible that the tribunal could award costs against a party if their behaviour is deemed by the judge to be, for instance, vexatious or unreasonable.

They will hear cases such unfair dismissal and wrongful dismissal, claims for redundancy payments and/or unlawful deductions from wages and discrimination claims under the Equality Act amongst others.

Whilst undergoing fertility treatment, you will not be entitled to statutory time off.  However, the Advisory, Conciliation and Arbitration Service (ACAS) guidance states that employers should treat appointments related to IVF in the same way as any other medical appointment, under the terms and conditions of the contract of employment. If the implantation is successful, you will be entitled to maternity leave. You should consult your employment contract to find out on what terms. 

Surrogate mothers will have the right to 52 weeks maternity leave and have the option to return to their job after their maternity leave. Intended parents may have the right to adoption leave or parental leave, but only one parent will be able to take adoption leave. If there are two parents, then the other may be entitled to paternity leave.

• Default Judgment – typically our costs will be in the region of between £2,500 - £3,500 plus VAT (straightforward facts and legal complexity, including where you successfully bring or defend your case without going to a final hearing)
• Unfair Dismissal – typically costs in the range of £12,500 - £35,000 plus VAT (straightforward facts and legal complexity with full one day hearing, but still very much depending on the facts and numbers of witnesses and extent to which the factual matrix and legal arguments are contested and on what basis – see also factors that influence costs below)
• Constructive Unfair Dismissal – typically costs in the region of between £18,000 - £40,000 plus VAT (medium complexity)
• Unfair Dismissal  (high complexity – for instance involving allegations of unfair dismissal plus discrimination and/or whistle-blowing) -  up to £60,000 + VAT (high complexity including whistleblowing/public interest disclosure or discrimination)
• Wrongful dismissal - This will usually only be pursued in conjunction with one of the above with the above cost estimates applicable.  If the value of the claim for wrongful dismissal exceeds the cap in the Tribunal, we may advise pursuing through the civil courts and where our costs could be an additional sum between £15,000 - £100,000 plus VAT depending on the values and complexity of issues arising.

Range 

• Complexity of facts and extent to which this is disputed 

• Volume and nature of documentation involved and whether there are any issues on what documents the parties have or haven’t disclosed to each other  

• Whether or not the Tribunal lists the matter for a pre-hearing (this is a hearing before the main trial, typically when the Judge decides what legal issues there are and makes directions about what happens next)  

• Numbers of witnesses

• Number of parties involved 

• Numbers of days’ hearing the matter is scheduled for 

• Legal issues arising on if a Claimant is eligible to bring a claim and/or other procedural issues 

• How much the case is worth and legal complexity of the complaint(s) 

Key Stages and typical costs for a relatively straightforward matter (in each case plus VAT)

• Prior to claim being sent to the Employment Tribunal (including involving ACAS Early Conciliation) between the range of £750 - £3,500 
• Submitting claim(s) (ET1) to the Employment Tribunal in the region of £1,500 - £5,000 
• Drafting a defence to a claim (ET3 response) in the region of £1500 - £5000 
• Preliminary Hearing-estimated range of £1,000 - £5,000 
• Schedule of Loss £750-1500
• Exchanging relevant documents in the case (disclosure) £1500 - £5,000
• Trial Bundle of documents for the Judge to see – £750 - £3,500 (Respondent) 
• Settlement Negotiations and ACAS COT3/settlement terms during proceedings - £1,500 - £5,000 
• Witness Statements £2,500 - £7,500 
• Final Hearing £1,500 to £4,000 plus disbursements (counsel’s fees to be charged in addition) plus additional costs at hourly rates for attendance at Tribunal with Counsel if required.  

Timescales

• Issue claim – 3 months less a day from date of act complained of, subject to first submitting to ACAS early conciliation 
• To preliminary hearing (if required) – up to 5 months 
• To final hearing – 6 months to 2 years. If default judgment – matters will usually take 3-6 months to conclude, though default judgments remain rare.  

Likely Disbursements

• Barrister’s fees for Preliminary Hearing - £750 - £3,500*
• Barrister’s fees for Final Hearing - £2,500 - £100,000* (first day), £650 - £3,000* (each additional day) 

*this will depend upon the call and experience of the barrister 

Services to be provided 

Our fees include: 

• Taking instructions and reviewing documentation 
• Pre-action correspondence with other side (former employer/employee) 
• ACAS Early Conciliation steps 
• Issuing ET1 Claim form or preparing an ET3 response and correspondence with Employment Tribunal 
• Negotiations with other side* (whether direct with the other side or via ACAS) 
• Obtaining default judgment* 
• Preliminary Hearing steps, including list of issues, case management agenda (setting out the directions given by the Judge to bring the case to hearing), instructing barrister (counsel)*
• Case management steps (schedule of loss, documents, trial bundle, witness statements)
• Statement of issues/case list*
• Final hearing (including deciding on compensation payable – “remedy”) 

*where appropriate/necessary  

Charging Basis 

We charge on the basis of hourly rates, which are as follows: 

• Robert Whitaker (Executive Partner) - £300 plus VAT 
• Katherine Jameson (Associate) - £275 plus VAT 
• Karen French (Paralegal) - £110 plus VAT

Summary  

An employment tribunal is like a court, specifically for handling employment disputes where an employee is bringing a claim against his or her employer. It’s made up of a judge sitting alone or a panel of three people, one of whom will be a judge, who will be legally qualified in employment law; the other two are lay members – that is, not judges or lawyers by profession, although they will have experience in employment issues.  One will be an employee representative, and the other an employer representative. Some cases can be heard just by the judge.  Cases of discrimination must be heard by three judges. Although it’s not a requirement to have a lawyer represent you, most people choose to have legal representation.

For a dismissal from a job to be considered potentially fair it must be on a ground set out under section 98 of the Employment Rights Act:

• redundancy
• performance 
• conduct
• illegality
• “some other substantial reason”.

For the dismissal to be fair it will often need to pass the test of being within the range of reasonable responses of an employer. The employer will need to follow an appropriate fair process to minimise the risks of a claim finding procedural unfairness. 

Sometimes the situation is such that it’s considered to be an automatic unfair dismissal. This would be when it relates to something where the employee is protected by law such as:

• maternity/paternity leave
• parental/adoption leave
• asking to be paid the minimum wage
• pregnancy
• trade union activities
• making a protected disclosure (i.e. whistleblowing).

They are the same thing essentially. In July 2013 the government introduced some changes including pre-termination negotiations and at the same time changed the name from compromise agreement to settlement agreement.

It means that any discussions or negotiations between the parties are confidential and “off the record” and cannot usually be used against the other party, if the negotiations break down and a claim is brought in the court or tribunal. An employer may also commence what is known as a “protected conversation” which is similar. If the employee has been placed under undue pressure or there is no genuine dispute, the discussions may not be “without prejudice” or protected from disclosure. Care should be taken in what is said in such communications, and you should seek specialist legal advice.

There is no set method or formula to calculate what you should get under a settlement agreement, however, at a minimum you should receive any contractual payments (i.e. salary and benefits to termination, any accrued but untaken holiday at termination, notice pay, any contractual bonus/commission/shares etc).  In addition to this it is usual for the employer to offer a payment as compensation for loss of office. 

If the reason for termination is redundancy this should include any entitlement to a statutory redundancy payment.  The first £30,000 of any compensation payment should be able to be paid tax free so long as it is not made up of any contractual elements.  Employers generally offer between 1 to 6 months salary on top of the contractual entitlements.

Payments of up to £30,000, which are not made up of any notice or other contractual elements, can often be paid without any deduction of tax. However, we strongly recommend you take specialist advice from an accountant on the tax treatment of lump sums received , particularly in complex transactions involving, for instance a transfer or sale of shares, alongside leaving employment. At Tees we will work with your accountants and can provide you with specialists to assist you.

It is usual for an employer to offer a contribution towards legal fees but there is no legal requirement for them to do so. Contributions are usually between £350 and £750 plus VAT but it depends on the employer.  We try to stick within the contribution offered by the employer where possible but if you require us to negotiate with the employer, costs could rise above this and unless the employer agrees to increase their contribution, you would be responsible for any costs in excess of the contribution. 

For the settlement agreement to be legally binding the employee must take independent legal advice so that they understand the terms of the agreement and the implications of signing it.  Once it is signed by both parties it is open (that is, no longer "off the record" as part of a without prejudice negotiation) and binding.

There are certain formalities to be met, regulated by law under the Employment Rights Act. In summary, there will be some essential terms relating to the employee signing away their rights. In addition, the agreement will commonly include terms around any compensation payment to be made, agreed reference and any post-termination restrictions. Terms around confidentiality are also common but subject to limitations, for instance that employees cannot be prevented from making a “whistleblowing” protected disclosure. 

Usually it is the employer who takes the first step in offering a settlement agreement to an employee, however it is possible to request the same from your employer.  Any discussions with the employer would need to be on a without prejudice basis and would usually be termed a “protected conversation”. 

Redundancy is a type of dismissal which usually applies in the following situations:

• When your employer has a reduced need for the work that you carry out
• When your employer ceases to trade
• When the place where you work is closing.