Below are a collection of frequently asked questions from the “Employment” category. To view the full answer to each question please click the button below it. If you have any more specific questions that are not answered on this page please contact us and we will be happy to discuss it with you.
How long will my matter take?
The time that it takes from taking your initial instructions to the final resolution of your matter depends largely on the stage at which your case is resolved. If a settlement is reached during pre-claim conciliation, your case is likely to take 3-6 weeks. If your claim proceeds to a Final Hearing, your case is likely to take 12-48 weeks. 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.
How much do Employment Tribunals Cost?
Our pricing for bringing and defending claims for unfair or wrongful dismissal only and do not cover other claims such as discrimination claims and other tribunal claims.
- Simple case: £1500-2000 (excluding VAT)
- Medium complexity case: £3000-5000 (excluding VAT)
- High complexity case: £6000-15,000 (excluding VAT)
Factors that could make a case more complex:
- If it is necessary to make or defend applications to amend claims or to provide further information about an existing claim
- Defending claims that are brought by litigants in person
- Making or defending a costs application
- Complex preliminary issues such as whether the claimant is disabled (if this is not agreed by the parties)
- The number of witnesses and documents
- If it is an automatic unfair dismissal claim e.g. if you are dismissed after blowing the whistle on your employer
- Allegations of discrimination which are linked to the dismissal
There will be an additional charge for attending a Tribunal Hearing of £1000 per day (excluding VAT). Generally, we would allow 1-3 days depending on the complexity of your case. (Generally unless you ask us to we would not attend if counsel is instructed to deal with your matter).
Disbursements are costs related to your matter that are payable to third parties, such as court fees. We handle the payment of the disbursements on your behalf to ensure a smoother process.
Counsel’s fees estimated between £1200 to £2000 +vat per day (depending on the experience of the advocate) for attending a Tribunal Hearing (including preparation)
The fees set out above cover all of the work in relation to the following key stages of a claim:
- Taking your initial instructions, reviewing the papers and advising you on merits and likely compensation (this is likely to be revisited throughout the matter and subject to change)
- Entering into pre-claim conciliation where this is mandatory to explore whether a settlement can be reached;
- Preparing claim or response
- Reviewing and advising on claim or response from other party
- Exploring settlement and negotiating settlement throughout the process
- preparing or considering a schedule of loss
- Preparing for (and attending) a Preliminary Hearing
- Exchanging documents with the other party and agreeing a bundle of documents
- Taking witness statements, drafting statements and agreeing their content with witnesses
- preparing bundle of documents
- Reviewing and advising on the other party’s witness statements
- agreeing a list of issues, a chronology and/or cast list
- Preparation and attendance at Final Hearing, including instructions to Counsel
The stages set out above are an indication and if some of stages above are not required, the fee will be reduced. You may wish to handle the claim yourself and only have our advice in relation to some of the stages. This can also be arranged on your individual needs.
When does an Employer have a duty to make reasonable adjustments?
Discrimination may also occur because of a failure to make reasonable adjustments. This places a positive duty on the Employer where the disabled person is substantially disadvantaged at work because of their condition. This could occur where some physical feature of the premises such as a staircase prevents the Employee from functioning in their job or some other aspect such as work organisation, working hours or duties.
Should the Employer consult Employees before introducing changes to the Contract of Employment?
It is, generally speaking, good practice for an Employer to consult with Employees before introducing changes especially where they are detrimental to the Employees. In a situation where the Employees may not agree and the Employer is seeking to impose the change, failure to consult could lead to a successful constructive/unfair dismissal claim. Consultation should be with individuals. Where there are 20 or more Employees affected there may be a requirement to consult representatives. There is also a requirement to consult with representatives where contract change follows certain business transfers or changes in contractor.
Are any payments under the Settlement Agreement likely to be taxable?
The payments under a Settlement Agreement will usually be split into contractual and non-contractual elements for example; outstanding holiday pay or bonus is a taxable payment and will be subject to normal deductions of tax and national insurance. These payments come within the Income Tax (Earnings and Pensions) Act 2003, Section 62.
Section 401 of the Act provides an exemption of up to £30,000 in respect of payments which are not chargeable to income tax but are received upon the termination of employment. These payments may include a statutory, contractual or ex-gratia redundancy payment in a genuine redundancy situation, and non-contractual ex-gratia payments for loss of office or employment. These may also include a non-contractual payment in lieu of notice. However, if any Employer has a history of making non contractual payments which the Employee would reasonably expect to receive, these may be considered by the Inland Revue to be taxable earnings. For example where the Employer makes a non contractual payment of notice but nevertheless makes a deduction in respect of tax and national insurance.
This is a difficult, complex and changing area of law that requires specific advice.
What’s the time limit to submit a claim for discrimination to tribunal?
The usual time limit is three months from the act complained of or the last in a continuing series of acts. This may be extended in exceptional circumstances such as where a grievance procedure is still continuing at the time of the expiry of the three-month time limit.
What is the meaning of “victimisation”?
Discrimination by way of victimisation will occur if someone is subjected to adverse treatment because they have made a complaint of unlawful discrimination.
If an Employee is dismissed during his 3-months probationary period is he or she entitled to receive any accrued holiday pay?
Yes, the Employer must calculate the holiday entitlement from the commencement of employment until the final date of termination. This relates to the statutory number of holidays. If the contractual number of holidays is in excess of the statutory minimum the Employee should also be paid subject to any specific clause in the contract of employment.
How is compensation calculated in discrimination cases?
Compensation will be awarded for losses arising from the act of discrimination. An important part of this figure usually consists of lost earnings. A calculation is made of losses up to the date of the tribunal and may be projected into the future depending on how long the tribunal believes losses will continue. The assessment of losses will take into account earnings from a new position which will be deducted from the award. If the Employee finds alternative work paying the same or more, losses will stop from that point.
In discrimination cases an award for injury to feelings may be made. This will fall into one of three cases depending on the severity and length of time of the suffering. Most cases will fall in the lower band of below £5000, more severe cases will fall into the middle range of £5000 to £15000 and the most severe over £15000. In some cases part of this award will be made up of a separate award for personal injury.
There is no upper limit on the award of compensation in a case of unlawful discrimination.
What is the meaning of “harassment” in the context of disability discrimination?
Discrimination by way of harassment means that someone suffers unwanted conduct on the grounds of their disability which has the effect of violating his or her dignity or creating an intimidating, hostile, degrading or offensive environment. Such harassment could arise from inappropriate comments, physical contact or behaviour such as ignoring someone. In a case of harassment there may also be an alternative route available through the civil courts under the Protection from Harassment Act 1997.
When should an Employee receive a written statement of basic terms of employment
These must be provided by the Employer by the end of the second month of employment. This is known as the Principle Statement of Terms and covers the terms and conditions relating to holiday pay, working hours, the Employees job title, place of work, the Employer’s address etc.
May an Employer recover by means of a deduction from the final salary payment in respect of holiday taken in excess of entitlement?
Not unless the contract contains an express provision.
Does an Employer have to obtain the consent of the Employee in order to vary the Contract of Employment?
The general principle is that both parties to a contract have to agree to a change. The best evidence will be a written agreement. Often changes will be made such as the introduction of a pay rise and there will be no written agreement to this but the parties will be seen to have accepted it by their actions i.e. the Employer paying the new sum and the Employee accepting it. If there are detrimental changes to the Contract of Employment an Employer should seek the Employee’s consent. The fact that the Employee has not protested will not in all cases mean that the change is accepted, especially where it is a change having little or immediate impact on the Employee. In some circumstances such as where there is a transfer of a business there are special restrictions on the ability of the Employer to change the Contract of Employment of the Employee if the reason is related to the transfer.
How is a week’s holiday pay calculated?
Unless the contract of employment specifies otherwise, a week’s holiday pay is the amount equivalent to a week’s normal pay. A day’s pay is the worker’s hourly rate multiplied by the number of hours normally worked or a week’s pay divided by the number of hours normally worked. For workers who work irregular hours, a week’s pay is calculated by averaging their weekly earning over a 12-week reference period ending with a week immediately preceding the dates on which the referencing period began. A week’s pay for a salaried worker is the workers annual salary divided by 52. Overtime hours are not included in the above calculation.
Is there an upper limit for the award of compensation in discrimination cases?
No. This contrasts with the situation with unfair dismissal.
Is there a requirement to consult with Employees when there is a TUPE transfer?
There is a requirement for the Employer to inform the Employees of the legal, social and economic implications of a TUPE transfer. If the Employer intends to take any measures in respect of any Employee there must also be consultation. The consultation must be with Employee representatives. There are special rules concerning the validity of representatives.
What is a compromise agreement?
A compromise agreement is a binding legal document between an ex Employer and an ex Employee. It records the terms of departure and often includes an additional payment in consideration of the Employee compromising any employment claims. It must conform to the requirements of the Employment Rights Act 1996 otherwise it will not be binding. It is therefore important for it to be drafted by a competent person such as a solicitor with expertise in employment law.
If an Employee is dismissed for gross misconduct is he or she still entitled to be paid for outstanding holiday?
Yes, up to the statutory minimum number of holidays. Employers may lawfully refuse to pay for holidays untaken over the statutory minimum if there is a contractual clause allowing this where the Employee is dismissed for gross misconduct.
Can an Employer include a clause in the Contract which allows for the Contract to be varied in certain circumstances?
A contract may contain an express power to change a contract term or refer to a special arrangement such as a collective agreement with a Trade Union which allows for changes to be made.
Sometimes a contract will allow for a change in the rate of pay in certain specific circumstances. However, general clauses providing flexibility will be unlikely to give an Employer a free hand to make any change to a contract that they wish.
The advice set out in our frequently answered questions is generic advice not specific to your case and no liability attached to the answers. However, if you do want advice specific to your case please contact us at TM Law and we would be delighted to either fix up a meeting or have a brief chat with you to see if we can assist.