Firstly, information about the cost of taking employment law advice. This information must be considered advisory as, for example, employment tribunal costs vary enormously with the complexity of any matter. The best idea is to call us to discuss costs directly!

All our bills are ‘plus VAT’. All employment law work is carried out by Simon Steen who qualified in 1989 and thus has over 30 years of employment law experience. He did his first employment tribunal claim in about 1990 and has done nothing else but employment law since. Simon originally qualified as a barrister on advice that that was the best route to becoming an ‘in house lawyer’. He then did become an ‘in house lawyer’ and worked as such for about 5 years. Later, however, he decided that the commercial cut and thrust of private practice as a solicitor was more his style so re-qualified as a solicitor. Before moving ‘down south’ he was a partner of a large Northern firm of solicitors.

Our hourly charges (as of April 2020) are £285 plus VAT for most matters but £300 plus VAT for some matters. The rate will be explained to you at the outset of our relationship. We hardly have any other costs called ‘disbursements’ other than occasional train fares and barristers costs which can both attract VAT. Train fares are only occasioned when we are asked to travel to Client sites or to tribunals. We try and minimise such costs and will discuss them with you ‘as and when’.

Settlement agreement costs

This is one of our specialist areas. We deal with hundreds of settlement agreements a year. Normally we say that the minimum we will charge is £500 plus VAT. Within this time cost we will be able to advise whether the offer is a good one, whether the underlying dismissal or proposed dismissal is fair and on the terms of the settlement agreement. If we are able, thereafter, to negotiate more money for you we will do so and will, during this period, ensure as best we are able that the costs are proportionate to the increase in settlement. Typical costs range from the £500 mentioned above, to £1000 for a few weeks of negotiation to £3,500 for a couple of months of high-level negotiation on settlement, bonus and commission claims, share options and such like. The most we ever charged, all of which was refunded by the ex-employer, was £5,000 but that did result in a settlement of over £4 million. That was exceptional!

Employment tribunal costs

For example, the cost of providing advice and representation to employees in relation to unfair dismissal claims before the Employment Tribunal could range from £3,000 plus VAT to £12,000 plus VAT.

In any such wrongful dismissal claim we would also discuss whether to proceed in the county court instead. Employment Tribunals can only award compensation of up to £25,000 for damages for breach of contract.

For employer’s defending unfair and wrongful dismissal claims the costs will also vary. We are very experienced and focused on not allowing costs to run away – instructing Steen & Co Employment Solicitors means you will have a clear idea of the likely costs and regular updates.

The defence of a tribunal claim can range from £5,000 to ‘tens of thousands of pounds’. The most we have charged was for a 5-day defence of a whistleblowing claim brought against a FTSE 100 subsidiary. That case lasted over a year and cost over £50,000 (all refunded by the employer’s insurance).

Simon Steen is an extremely experienced employment tribunal advocate and does nearly all the tribunal advocacy himself. The exception is when the case is listed for multiple days, in such a case it is usual for a barrister to be instructed for the hearing.

The stages and costs of an employment tribunal claim

In this note the ex-employee is called the Claimant and the Company is called the Respondent. The Claimant is claiming in Tribunal and the Respondent is responding to that claim.

The initial stages of an Employment Tribunal from the point of view of a company. This part of this article doesn’t just deal with costs but explains the steps in a tribunal case. the costs of these stages are given as time estimates.

1. ACAS will have contacted you, except where the Claimant rejected ACAS conciliation before it even happened. If that has happened, the first you will know about a claim is when the claim form arrives.

2. If conciliation has not been rejected by the Claimant, ACAS will contact you. They will ask if you want to take part in conciliation. You have an immediate choice – yes or no. Saying ‘yes’ does not commit you to anything except talking to ACAS.

3. If conciliation is agreed by both parties then ACAS will go back and forth between the parties passing on messages with a view to reaching agreement. If a figure is agreed then ACAS will produce a written agreement (COT3) which is legally binding.

   How much time we spend dealing with the Client and with ACAS entirely depends on the engagement by the other side. In that respect we could spend no time with ACAS or a few hours going back and forth.

4. If settlement has not happened, because conciliation was rejected by either party or because conciliation didn’t lead to settlement, ACAS will produce a conciliation certificate which will confirm that the Claimant can now bring a claim in the Employment Tribunal.

5. There are time limits for the Claimant to bring a claim. Broadly speaking these are three months less a day from the dismissal or discrimination but the ACAS early conciliation process ‘stops the clock’.

6. The next stage is that the ET1 (which is sometimes still referred to by its old name of ‘originating application’) is sent in time by the Claimant to the Tribunal. It will be rejected if he is out of time.

7. The Tribunal reviews the application in accordance with the ‘Rules’. These are the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. They are not complicated and we can explain them if required.

8. The Tribunal sends form ET2 - acknowledgement of application to the Claimant and Respondent. We may spend up to an hour or two reviewing the claim and checking, for example, what claims are being made.

9. The Tribunal also sends form ET3 - Defence or ‘Notice of Appearance’ - to the Respondent and gives it 28 days from the date of the ET2 to lodge the completed defence back with the Tribunal.

   The services provided by different ACAS representatives varies. Some are nothing more than a glorified message service. Some are really poor, for example, we have experience of ACAS people listening to only one side.

   An overall note about being a Respondent: at the earliest stage we advise you consider what your final speech will be in Tribunal. This is your ‘destination’ and to continue that metaphor: always keep your destination in mind!

   Drafting the defence takes various amounts of time depending on the complexity of the matter and on our ‘instructions’. Sometimes clients are not able to really explain why they dismissed someone.

10. After the defence or ET3 has been sent back to the Tribunal, the Tribunal sends Directions. Sometimes, in simple cases, it sends these out with the ET2. Directions are process and timetable orders which both sides must follow.

11. Sometimes Tribunals serve questionnaires of all possible pre-hearing questions and ask the parties to fill these in before a preliminary hearing.

12. Sometimes ‘mediation’ is considered. This can be privately organised but is sometimes offered by the employment judge. If the parties are in dispute about the facts or about the process then mediation can be helpful.

13. In cases with lots of issues, the parties are ordered to create a “statement of issues” and this can be complicated. The ‘issues’ are a list of the legal issues. So, for example, in a misconduct dismissal the issues might be: (a) did the Claimant commit the act? (b) did the Respondent have reasonable grounds to believe that? (c) was the process fair?

    If neither party are legally represented then the Tribunal is not likely to require a ‘statement of issues’ to be produced. In such a case it may order a preliminary hearing at which the Employment Judge will decide what the issues are.

    An example of an order as to the ‘List of Issues’ is as follows

    Where the claimant and the respondent are both professionally represented, the professional representatives shall prepare a draft statement of issues or questions that are to be decided by the Tribunal and shall exchange it with the other party before the next hearing.

14. The Respondent should start as early as possible creating a list of all relevant documents. Dealing with documents is one of the most time involved parts of the process. You should ask us for advice at every stage.

15. The next direction will be to produce and provide a list of documents. This requirement covers all relevant documents not just those that the Respondent intends to rely on and not just those that help the Respondent’s case.

16. The Tribunal will order one side or the other to produce a bundle for the Tribunal containing both sides’ documents. Sometimes it makes sense for the Respondent to take on this responsibility.

    By such and such a date the respondent shall then prepare sufficient copies of the documents for the hearing. The documents shall be fastened together in a file so as to open flat. The file of documents must be paginated.

17. Some Claimants have no idea what should be in the bundle and ask for vast amounts of irrelevant documents to go in the bundle. Our worst experience was a Claimant who printed 3 ½ feet of documents!

18. The next direction will be to send documents to the other side. This is called ‘exchange’. Sometimes the list and exchange are ordered at the same time and even if this is not the case, as soon as your list is ready you should send it.

    ‘These days’ we use Adobe Acrobat to deal with the bundle and with numbering the individual pages. The time involved is considerable. The last bill we sent for a tribunal claim involved two days of assembling and paginating documents.

19. Either side can, in theory, ask questions of the other side in writing setting out why the question/answer is relevant. Sometimes one or the other party (or even the Tribunal) requests another list of issues or orders further particulars.

20. Sometimes there is a preliminary hearing – this can be to decide directions and/or to decide a qualifying condition for continuing such as ‘was he an employee’ or ‘is she disabled’.

21. The next stage is that exchange of witness statements is ordered. Drafting such statements is time consuming. They should reference the bundle pages as required. We have produced a separate article on witness statements.

    The normal order is to require the parties to exchange the witness statements at the same time. This usually means calling the other side and agreeing a date and time when they are sent by email.

    By such and such a date the claimant and the respondent shall prepare full written statements of the evidence they and their witnesses intend to give at the hearing. No additional witness evidence may be given at the hearing except with permission.

22. If, when you receive the other side’s witness statements, you realise that they contain evidence that you haven’t dealt with (because, for example, they deal with matters that were not in dispute), you will need to consider whether to apply for permission to serve further evidence.

    Witness statements can take a considerable time. We estimate that a straightforward defence with one witness will still take 4 or 5 hours to deal with but a complex discrimination case with multiple witnesses could take 15 hours.

23. Another direction is that the Claimant is ordered to serve a ‘statement of loss’. Sometimes a statement of loss is ordered at the outset and an updated one 7 days before hearing. There is no standard form.

    By such and such a date the claimant shall set out in writing what remedy the Tribunal is being asked to award. The claimant shall send a copy to the respondent. The claimant shall include an explanation of how the figures are calculated.

    We are regularly asked about ‘statements of loss’ by potential clients. Unfortunately, they are complicated to produce. Essentially, they will come down to a structured explanation of the amount the Claimant says is owed.

    Similar calculations and estimates are needed for discrimination cases but in those cases, ‘injury to feeling’ awards need to be estimated and those estimates need to be backed up with evidence.

    We say that that process is a bit like an estate agent providing evidence of the sales of comparable houses to justify his or her house valuation. In discrimination cases an interest calculation is also required.

24. Respondents should consider collating a bundle of job advertisements that the Claimant could have applied for. If you lose in the Tribunal you can fall back on arguing that there were loads of suitable vacancies.

25. At some point a date of hearing is issued (parties generally have 7 days to object to a date). It is often provided with the standard ‘directions’ at the outset. If you are involved in a claim you should keep in touch: it is easy to miss a letter from the Tribunal.

    At this stage you have complied with the directions order, have a bundle, have exchanged witness statements, received the remedy statement (or ‘statement of loss’), have sufficient copies of the bundle for the Tribunal, and are ready for the hearing.

    The final stage is the hearing itself. This note doesn’t deal with the hearing itself. There are a couple of points, however, that we can make. The first is the answer to the question ‘who gets the costs?’ The answer is that costs are not routinely awarded in the Tribunal.