Range of costs for Business Customers defending unfair dismissal claims (including constructive dismissal) claims
Our team, which operates from offices in Lincoln and York, has many years of collective experience in providing high quality representation to businesses defending claims for unfair dismissal (including constructive dismissal*) against their former employer. In respect of such claims, we set out below details of:
(i) the key stages that are, or might be, involved and which we can assist you with;
(ii) an indication of the time that each stage takes;
(iii) an indication of who will undertake the work and our potential legal fees;
(iv) an indication of the costs of instructing Counsel*; and
(v) details about whether your costs can be recovered.
In the table below, we set out an indication of the likely stages that would be involved in defending a claim for unfair dismissal (including constructive dismissal) claims. Based on our experience, we also set out the likely number of hours (as a range) that each stage might take. By way of example, the difference in the number of hours for each stage reflects how complicated the relevant work in that stage is, or how many documents are involved.
|Stage in Legal Proceedings||Hours of Work|
|Entering into pre-claim conciliation* where this is mandatory to explore whether a settlement can be reached||2 - 5|
|Taking your initial instructions, reviewing basic papers and advising you on the merits of the claim and likely compensation*||3 - 5|
|Reviewing and advising on the claim form* which is the document that outlines the case that the claimant* is bringing against the employer||2 - 4|
|Preparing the response form outlining the employer’s case in relation to the allegations in the claim form||3 - 10|
|Exploring and negotiating settlement throughout the process||2 - 7|
|Reviewing any schedule of loss* and advising on whether the sums claimed are recoverable||1 - 3|
|Preparing for (and attending) a ½ day preliminary hearing*. (This is not common in an unfair dismissal (including constructive dismissal) case and has not been included in the range of costs below)||10 - 15|
|Disclosure* of documents to the other party||3 - 7|
|Preparing a bundle of documents*||2 - 6|
|Taking witness statements* which involves drafting statements and agreeing their content with witnesses (up to 2 witnesses)||5 - 15|
|Reviewing and advising on the other party’s’ witness statement(s)||3 - 5|
|Agreeing a list of issues and/or a chronology||1 - 3|
|Drafting instructions to Counsel||2 - 4|
|Preparation for final hearing*||5 - 16|
|Attendance at final hearing (assuming one to three days)||10 - 30|
Who will undertake the work?
This largely depends on the complexity of the matter. The case may be handled by a solicitor/associate or a partner, or a combination of both. If the case is, largely, being dealt with by a solicitor/associate, it will always be supervised by one of our partners. Our hourly rates range from £135 - £250 (plus VAT).
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As the work that is required varies from case to case, it is very difficult to be precise about the likely costs. However, as indications, we set out below the potential costs (excluding VAT) of instructing us to represent you in bringing an unfair dismissal (including constructive dismissal) claim*, depending on the complexity of the matter:
- Simple case: £6,000 - £11,000
- Medium complexity case: £7,500 - £14,000
- High complexity case: £16,500 - £30,000
If some of the stages in the table above are not required, this would, potentially, make a case a simple one, or of medium complexity. That would result in fees being reduced. You may wish to handle part(s) of the defence yourself and only instruct us to advise/act in respect of certain stages. Again, that would result in fees being reduced.
There are a number of factors that could make a case more complex and thus incur more fees than the sums outlined above. Some of those factors are:
- If it is necessary to make applications to amend claims or to provide further information about an existing claim
- Making or defending a costs application*
- Complex preliminary issues
- The number of witnesses you are calling
- The number of documents to be disclosed or considered in the bundle are extensive
- Whether the claimant is legally represented or not
- Whether you are raising any whistleblowing* or discrimination issues* linked to the dismissal
Generally, we would allow one to three days for a hearing on an unfair dismissal claim, depending on the complexity of the case.
We handle the payment of the disbursements on your behalf to ensure a smoother process.
If required, Counsel's fees for representing you at a Tribunal Hearing (including preparation) are estimated at £500 to £1,250 (plus VAT) per day (depending on the experience of the advocate). Generally, we would allow one to three days for an unfair dismissal hearing, depending on the complexity of the case.
How long will the matter take?
The time that it takes from taking your initial instructions to the final resolution of the matter depends largely on the stage at which this resolved. If a settlement is reached during pre-claim conciliation, the case is likely to take four to six weeks.
If the matter proceeds to a final hearing, the case is likely to take six to 18 months depending on how long the final hearing is listed for and which employment tribunal it is listed at. This is just an estimate and we will, of course, be able to give you a more accurate timescale once we have more information and as the matter progresses.
Can a business employer recover its costs?
Generally, each party in an unfair dismissal claim (including constructive dismissal) will be responsible for bearing their own costs.
|Bundle of documents||the file of all documents relevant to the claim that the employment tribunal will look at during the hearing.|
|Claimant||the party bringing the claim.
|Claim form||a form (also known as an “ET1”) produced by the employment tribunal service for claimants to use to provide the mandatory information relevant to their claim. Claimants are required to use this form to initiate claims in the employment tribunal.|
|Compensation||an amount of money, awarded to someone in recognition of loss, suffering or injury.|
|Costs application||an application made to the employment tribunal for the judge to order that one side pays the other side’s costs incurred in respect of the case.|
|Counsel||a barrister who is instructed on a particular case in the employment tribunal.|
|Disclosure||this means that all documents relevant to an issue in the claim that are in a party's possession, custody or control should be disclosed to the other party or parties. This includes the documents on which the party relies, as well as the documents which adversely affect their case, adversely affect another party's case, or support another party's case. To disclose a document, you notify the other party of that document’s existence. You may then be required to provide a copy of that document to the other party.|
|Discrimination issues/allegations||these arise where a person claims that they have been discriminated against during their employment contrary to the Equality Act 2010. The Act protects people with certain protected characteristics: age, disability, sex, race, religion or belief, marriage or civil partnership, pregnancy or maternity, gender reassignment or sexual orientation. The different types of discrimination are direct discrimination, indirect discrimination, harassment, victimisation, discrimination arising from disability, or failure to make reasonable adjustments for a disabled worker.|
|Final hearing||a hearing at which the tribunal determines the claim, or such parts as remain outstanding as at the date of the hearing. There may be different final hearings for different issues, for example, liability, remedy or costs.|
a process that applies to most employment disputes, under which one of the parties must contact the Advisory, Conciliation and Arbitration Service (ACAS) in order to try reach an agreement between the parties, before a claim can be issued in the employment tribunal, unless one of the limited exceptions applies.
|Preliminary hearing||a hearing that takes place before a final hearing. This may be to allow the judge to familiarise themselves with the claim, clarify the issues and decide on matters such as the date and time of the final hearing and how long the final hearing should take; such a hearing would be called a case management hearing. A preliminary hearing may also determine issues in the case, where dealing with those issues early in proceedings is likely to make the proceedings as a whole more efficient.|
|Schedule of loss||a document setting out how much the claimant would like the employment tribunal to award if the claim is successful. This document states how much a claim is worth.|
|Unfair dismissal||a dismissal of an employee in contravention of section 98 of the Employment Rights Act 1996. For a dismissal to be fair it must be for one of the five potentially fair reasons in the Employment Rights Act 1996 (conduct, capability, redundancy, breach of a statutory restriction or "some other substantial reason") and the employer must act reasonably in all the circumstances, including the size and administrative resources of the undertaking, in treating that reason as sufficient to justify dismissal of the employee.|
|Whistleblowing||the act of a of a worker (or "whistleblower") making a qualifying (protected) disclosure to an employer, regulator, legal adviser, minister or other responsible or prescribed person that a relevant failure (for example the endangerment of health and safety) has occurred, is occurring or is likely to occur. In these circumstances and subject to fulfilling certain criteria, the whistleblower will be protected from being dismissed or subjected to a detriment because of the disclosure.|
|Witness statement||a written document, used in the employment tribunal, setting out the evidence of a person (witness) involved in the claim.|