Defending unfair or wrongful dismissal claims

Any member of our employment litigation and disputes team may advise on the day-to-day conduct of your matter, under the supervision of partners Hayley Robinson, Lois Horne or Jonathan Arr.

Please see the biographies of our employment team and Lois Horne, Jonathan Arr, Laura Bridgewater and Joanna Constantis from our litigation team. 

Our fees

Given the potential for conflicts, we do not represent individual claimants in the Employment Tribunal. The information below relates to the work we undertake representing employers in the context of claims for unfair dismissal and/or wrongful dismissal brought against them.

If you (as an employer) instruct us simply to defend a claim in the Employment Tribunal for unfair or wrongful dismissal, the likely range of costs (excluding VAT) is set out below.

We also highlight the factors which are likely to result in the case falling into the high complexity category and so incurring fees at the higher end of the range or, in the case of work which goes beyond unfair or wrongful dismissal claim defence work, falling outside the ranges provided.

The factors that tend to make a case more complex and therefore more expensive to defend include:

• there being a large number of witnesses;
• the nature and extent of the disclosure process (involving each party searching for, listing and disclosing to the other party/ies every document that is relevant to the claim) entailing a large volume of documents and/or documents in multiple formats or from multiple sources (e.g. paper and computer records, telephone logs and emails);
• it being necessary to defend and/or respond to applications to amend claims;
• defending claims that are brought by litigants in person (i.e. someone who does not have their own legal representation);
• making or defending a costs application;
• making or defending applications before the Employment Tribunal about how the litigation is being conducted such as an application for further and better particulars (where a claim form has provided insufficient detail of the allegations made) or for an unless order (an application for the other party’s claim or response to be struck out if it fails to comply with a specific order of the Tribunal);
• complex preliminary issues, such as where the claimant is disabled (if this is not agreed by the parties) or if a medical report is required;
• the claim being an automatic unfair dismissal claim e.g. if the claimant is dismissed after blowing the whistle;
• the claim including allegations of discrimination or being combined with other claims; and
• the claim involving judicial mediation.

We will discuss with you whether or not you wish one of our team to attend the Tribunal Hearing in addition to the barrister we engage on your behalf. Typically we would expect a junior team member to attend.

Disbursements

Disbursements are costs related to your matter that are payable to third parties, such as a barrister’s fees. We will handle payment of the disbursements on your behalf and so these will appear on our invoice to you.

Fee rates for barristers or "counsel" are set by individual chambers. The level of fees for counsel will depend upon the experience of the barrister, the complexity of the case and how many days the Tribunal Hearing will last. We are not responsible for setting counsel fee rates and provide the following indicative range of the fee rate, for advocacy, by way of example only (excluding VAT charged at 20 per cent):

Where a matter proceeds to a full trial, we will typically prepare the trial bundle of documents. The stationery costs are charged as a disbursement, which will depend on the volume of documentation involved in each case. Costs (excluding VAT) are typically:

Simple case
£160

Medium complexity case
£320

High complexity case
£600+

Key stages

The ranges of fees set out above cover all work in relation to the following key stages of defending a straightforward unfair or wrongful dismissal claim:

• taking your initial instructions, reviewing the papers and advising you on merits and the possible level of award against you if the claim succeeds (this is likely to be revisited throughout the matter and subject to change);
• preparing the defence/response to a claim;
• reviewing and advising on the claimant’s claim;
• advising on and making relevant applications prior to the Tribunal Hearing such as an application for further and better particulars (where a claim form has provided insufficient detail of the allegations made) or for an unless order (where you apply for the other party’s claim or response to be struck out if it fails to comply with a specific order of the Tribunal);
• considering a schedule of loss;
• preparing for (but not attending) a Preliminary Hearing;
• advising on the obligation to disclose to the other party all documents relevant to the claim;
• exchanging documents with the other party and agreeing a bundle of documents;
• taking witness statements, drafting statements and agreeing their content with witnesses;
• preparing a bundle of documents;
• reviewing and advising on the other party’s witness statements;
• agreeing a list of issues, a chronology and/or cast list; and
• preparing for the Tribunal Hearing including instructing counsel.

The stages set out above are only an indication of the likely process. It may be that not all stages are required or relevant, in which case fees may fall at the lower end of the ranges given. It may be that you only require our advice in relation to some of the stages and you will otherwise handle the case personally. We can discuss this with you, as needed.

The range of fees set out above will not include:

• entering into pre-claim conciliation where this is mandatory to explore whether a settlement can be reached;
• exploring settlement and negotiating settlement throughout the process, including drafting and negotiation of a settlement agreement, where settlement negotiations are successful;
• advising on a subject access request (where a claimant requests disclosure of information under data protection laws);
• attendance at the Employment Tribunal for any hearing (including preliminary hearings);
• advising on any claim other than unfair dismissal and/or wrongful dismissal;
• advising in respect of a claim brought in conjunction with a claim for unfair dismissal and/or wrongful dismissal but which is a separate claim (such as for discrimination); or
• defending any related claims in the High Court for example in respect of uncapped wrongful dismissal claims or making applications in the High Court for example for injunctive relief.

Length of claim process

The period of time from taking initial instructions to final resolution of the matter will depend on the stage at which the claim is resolved.

The mandatory pre-claim conciliation period may last for up to a maximum of one month and two weeks. If settlement is reached during pre-claim conciliation then the matter should be dealt with in that time frame.

If the claim proceeds to a Tribunal Hearing then the length of the process will depend upon the complexity of the claim, the availability of the relevant Tribunal to hear the claim and how many days the Tribunal Hearing is set for, as determined by the Tribunal. Typically a more straightforward case may take up to six months and a more complex case may take up to nine or 12 months.

These time periods are indicative only and depend on the Employment Tribunal in question. We will discuss the timescale of the process with you as the matter progresses.