Bringing a claim in the employment tribunal
Funding your employment tribunal case
Legal Expenses Insurance
Many people have the benefit of legal expenses insurance (LEI) without knowing it. LEI may be included with other insurance policies such as buildings or home contents. It may be described as ‘legal help’ or ‘legal cover’. If you have LEI, we may be able to agree that the insurer will pay our fees.
No win: no fee
If you are an employee and we think that your claim has good prospects, we may be willing to act for you under a type of ‘no win, no fee’ agreement. This is also known as a damages-based agreement (DBA). Under our DBA, if we are successful in recovering compensation from your employer, we will charge 35% of the amount of compensation recovered and you will keep the remaining 65%. The 35% fee includes VAT and there are no hidden extras. If we are unsuccessful, and provided you have kept to your obligations under the DBA, there will be no charge to you.
Paying by the hour
Traditionally, solicitors’ fees are calculated according to the time spent working on your case. This is our usual method of charging for employers, but employees sometimes prefer it to a DBA if their
claim is high value or likely to settle at an early stage. Our hourly rate for employment work is £250 plus VAT. Each case is different, which makes it difficult to give meaningful costs and time estimates until we know the details of yours. At one end of the spectrum are straightforward cases which settle within three months, for which our fee would typically be around £1,250 plus VAT; at the other extreme, a complex claim involving e.g. discrimination or whistleblowing may take two years to reach a final hearing, and our costs would likely be in the region of £20,000 plus VAT.
Employment Law for Employees Liverpool: In some cases, we are able to agree fixed fees for each stage of a tribunal claim, but we can only do this after we’ve assessed the particular circumstances of your case.
If an employer acts in a sufficiently serious way, an employee might consider resigning. A repudiatory breach entitles the employee to regard the contract as being at an end. This would be constructive dismissal. Examples include imposing a pay cut, or failing to provide a safe working environment.
Mutual Trust and Confidence
Employees often rely on the implied duty of trust and confidence. In common law, the duty was formulated in the following way:
“The employer shall not without reasonable and proper cause conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.”
Mahmud v Bank of Credit and Commerce International  ICR 606,
What if the employment relationship has been poor for some time? In those cases, it may be possible to show that a series of less serious breaches amounts to a repudiatory breach of contract.
Not all constructive dismissals are unfair. For example, an employer may be able to justify the imposition of a pay cut if it is necessary for the survival of the business.
As constructive unfair dismissal is simply a species of unfair dismissal, the remedies available for successful claimants are the same.
Compensation in Employment
A Claimant at an Employment Tribunal might be reinstated, but in most cases the remedy is compensation. Compensation in an employment tribunal claim means payment for financial losses. This usually means loss of:-
- wages, pension, bonus,
- company benefits such as private healthcare or childcare vouchers
- company car.
Except in cases of discrimination, financial loss does not include compensation for the emotional upheaval of losing a job. Nor does it compensate for debts or other financial hardship which often result from loss of wages.
I’ve won my case, how much compensation will I get?
Something Claimants often don’t appreciate during an employment tribunal claim, is that there are two distinct elements involved. As a result, a Claimant could ‘win’ their case, but the employer could convince a tribunal to reduce the amount of compensation it must pay. Because of this, a Claimant could end up with little or no compensation. This can happen if the tribunal are convinced by the employer that the outcome would have been the same if they had carried out a fair procedure (Polkey deductions); statutory deductions occur if the employee is found to have caused or contributed to the dismissal; or deductions can occur if claimants fail to mitigate their loss. We can discuss this with you more thoroughly. Employment Law for Employees Liverpool.
Discrimination in the Workplace
What is discrimination?
Discrimination occurs when someone treats someone else unfairly because they possess certain characteristics. The Equality Act 2010 highlights 9 characteristics which protect people with that characteristic:
- Pregnancy and maternity
- Sexual orientation
- Gender reassignment
- Marriage and civil partnership
Different types of discrimination
Discrimination can be either Direct or Indirect. Direct is when you can point to someone without your characteristic and show you are treated less favourably – for example you are not given the opportunity to apply for a promotion because you are on maternity leave.
Indirect is when a policy or procedure discriminates against you because of your characteristic – for example a policy that all employees must retire when they are 60 is indirect age discrimination.
Harassment is another form of discrimination which is defined as unwanted behaviour that makes another person feel offended, humiliated or intimidated. This covers behaviour such as physical gestures, verbal abuse, being constantly made the butt of jokes, receiving offensive emails.
More information on disability discrimination can be found on the Gov.uk website, or by clicking this link.
As a general rule, employees must have at least 2 years’ continuous employment to qualify for the right not to be unfairly dismissed. In an unfair dismissal case, the employer must be able to show that the employee was dismissed in a fair manner for a potentially fair reason. The potentially fair reasons are:
- Capability (which encompasses both poor performance and ill health)
- Contravention of statute
- Some other substantial reason
Your employer should have a Disciplinary and Grievance Policy. Ideally this will include how they are going to follow a fair disciplinary procedure. Your employer’s policy should meet the guidance set down in the ACAS Code of Practice, which you can read by clicking here.
The second stage of an unfair dismissal case is for the employment tribunal to decide whether the employer acted reasonably or unreasonably in dismissing their employee. Fair procedure is an important component in the test of overall fairness. Employers are expected to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures.
If the employment tribunal finds that the employee has been unfairly dismissed, the employee is entitled to ask to be restored to his old job (reinstatement), to be taken on in a different role (re-engagement), or to be compensated for his financial losses. In practice, compensation is by far the most common remedy.
Employment Law for Employees Liverpool: If you feel you are being badly treated by your employer, but you have not yet been dismissed, you might want to talk to our solicitors to see if you have a case for constructive dismissal instead, please see above for more guidance on that.
SPEAK TO ONE OF OUR EMPLOYMENT SPECIALISTS
If you need any further assistance please give us a call on 0151 480 5777 or fill in our contact form below.
What is Whistleblowing?
It is unlawful to dismiss an employee, or to subject them to any detriment, because they have made a “protected disclosure”. This is popularly known as “blowing the whistle”. The legislation is technical and requires consideration of a number of issues. The Claimant must be able to show that they made a disclosure of information rather than a bare allegation: