Expert advice across Employment Law

Starting your new job

Starting a new job or being promoted can be an exciting time, but you must know what you are being asked to sign up for. We can advise on the terms of your contract of employment or directors’ service agreement.

Even though a verbal agreement of employment is sufficient to create a contract of employment, putting it in writing is important because it sets out both parties’ expectations and is often relied on in litigation. It, therefore, needs to be an accurate representation of what has been agreed upon and be fair and reasonable to both parties.

We have expertise in negotiating (and renegotiating) contracts of employment and directors’ service agreements, including whether restrictions on your future employment are reasonable and can guide you through those negotiations.

Disciplinary and Grievances

When things don’t work out, the procedures in place to deal with those issues are disciplinary and grievance procedures. Both processes can be stressful and emotional.

We are able to provide you with calm, clear advice on how to navigate those processes and highlight whether your employer is acting reasonably or failing to comply with the expected lawful process (whether that is the ACAS Code of Practice or another relevant standard).
We always work to achieve the outcome you desire.

The issues involved can include the following:

Discrimination
Pregnancy and Maternity related issues
Unfair Treatment
Bullying and harassment
Changes to your contract of employment
Allegations of misconduct (including gross misconduct)
Allegations of poor performance
Short and long-term sickness absences

Our expertise enables us to advise you on any potential claims arising from these procedures and the most cost-effective way of resolving those claims. Often that involves protected conversations and settlement agreements (for more information, please see our protected conversations and settlement agreements.

Bringing an Employment Tribunal Claim

If you have been dismissed or treated unfairly at work and are considering bringing a claim against your employer, this generally involves bringing proceedings in the Employment Tribunals.
We are able to offer you the benefit of our expertise and years of experience in understanding what is involved in bringing a claim against your employer. We have expertise in representing employees in all types of claims before an Employment Tribunal, including:

Unfair dismissal
Breach of Contract
Unlawful deduction from Wages
Discrimination
Whistleblowing
Claims for failure to inform and consult, either under the redundancy regime or TUPE.

We can assist at key stages of the process or advise and represent you from the start of the claim to the final hearing. That will generally involve:

Advising on the merits of your potential claim;
Providing a cost/benefit analysis of your potential claim;
Advice on settlement negotiations;
Preparing the Claim Form (also known as an “ET1”)
Gathering and advising on the relevant documentation;
Instructing experts, where necessary;
Advising on and assisting with the preparation of witness statements
Drafting Schedules of Loss

For information about our fees, please see our Employment Fees Guide For Unfair Dismissal and Wrongful Dismissal Claims. Alternatively, if you have legal expenses insurance, we may be able to assist you within the terms of your insurance policy. Please contact us to explore this further.

Protected Conversations

Protected conversations are “off the record” discussions where there is a proposal for an employee to leave employment even when there are no issues or disputes.

Protected conversations are intended to give employers and employees the freedom to negotiate settlement agreements in the knowledge that their conversation cannot be used as evidence in unfair dismissal claims (provided there has been no improper conduct).

Protected conversations can therefore be started by an employer or an employee.

Such conversations will only remain confidential and will be inadmissible before a tribunal if they do not involve:

Claims relating to automatically unfair dismissal, such as whistleblowing, trade union membership or asserting a statutory right.
Claims made other than on the grounds of unfair dismissal, for example, claims for discrimination
Claims relating to breach of contract or wrongful dismissal (failure to provide adequate statutory or contractual notice, whichever is the greater);
Improper behaviour by the employer.

What is Improper Behaviour?

There is no definitive definition or description of what would amount to improper behaviour, but it would certainly include:

All forms of harassment, bullying and intimidation (which includes offensive words or aggressive behaviour)
Physical assault or the threat of physical assault and other criminal behaviour
All forms of victimisation;
All forms of discrimination because of age, sex, race, disability, sexual orientation, religion or belief, transgender, pregnancy and maternity and marriage or civil partnership; and
Putting the employee under undue pressure, which includes
- Not giving them a reasonable period (at least 10 days) within which to consider any offer;
- Informing the employee that any rejection of the offer would result in dismissal;
- The employee threatens to undermine the employer’s business reputation if a settlement agreement were not signed (unless doing so would be regarded as “whistleblowing”).

What is Not Improper Behaviour?

The following is unlikely to amount to improper behaviour.

Setting out neutrally the reasons that have led to the proposed settlement agreement;
An employer factually stating the likely alternatives if an agreement is not reached, including the possibility of disciplinary action;
An employer factually stating that if an employee refuses a settlement agreement and any subsequent disciplinary action results in dismissal, then the employee may not be able to leave on the same terms as set out in the proposed settlement agreement;
Not using the template letters or model agreement set out in the Annexes to the ACAS guide;
An employer not agreeing to provide a reference;
An employer not paying for the employee’s independent legal advice on the terms of the settlement agreement;
An employer encourages an employee, in a non-threatening way, to reconsider a refusal of a proposal.

Settlement Agreements

Settlement agreements (used to be known as compromise agreements) is a legally binding contract between an employer and an employee. Its effect is that an employee gives up their rights to bring any potential claims before an employment tribunal, usually in return for financial and non-financial benefits (for example, a reference).

A Settlement Agreement is only binding if the employee takes independent legal advice on the terms and effect of the Settlement Agreement. We are able to provide that independent legal advice to employees.

We will go through the terms of the Settlement Agreement with you clause by clause and explain in plain English what they mean. Where necessary, we will negotiate changes which are advised.

It is common practice, but not a legal requirement, for an employer to contribute to the legal costs incurred by an employee taking independent legal advice. More often than not, we provide the independent legal advice within the contribution towards legal costs made by the employer, and if that is not going to be the case, we will discuss that with you before additional legal costs are incurred.

If you would like to contact one of our Employment team directly, please see their details below or alternatively click on the Contact Us button.

Dorlee Monschau – [email protected]

Price Transparency

Employment Fees Guide For Unfair Dismissal and Wrongful Dismissal Claims

Advice and representation before an Employment Tribunal in relation to unfair dismissal and wrongful dismissal claims are likely to fall within the following range of costs:

Straightforward cases involving a 1 day hearing: £10,000.00 to £15,000.00
Medium complexity cases involving a 2 to 3 day hearing: £15,000.00 to £20,000.00
Highly complex cases involving a hearing lasting for more than 4 days: £20,000.00 to £100,000.00.

The above cost ranges does not include: –

VAT which will charged at the relevant rate at the time the service is provided; currently 20%.
Advocacy at the final hearing of the case, whether this is done in-house or by an appointed barrister.
Disbursements (see Disbursements section below).

Most unfair dismissal claims and wrongful dismissal have other claims bought as the same time. For example, it might be argued that an unfair dismissal was for a discriminatory reason and a wrongful dismissal claim might also be argued as a breach of contract claim. The above figures only apply to the unfair dismissal and wrongful dismissal.

It is not only whether other claims are brought alongside unfair dismissal and wrongful dismissal claims that affect the likely costs involved. Every case is different and fact dependent, so the above fees are a guideline.

Other factors which affect the likely fees in a case include, but are not limited to: –

Whether the other party has legal representation;
The number of parties to the litigation;
How reasonably the other party conducts themselves within the Employment Tribunal claim;
Whether it is necessary to have a preliminary hearing (this is an administrative hearing which identifies the issues in dispute);
The number of documents or witnesses;
Whether it is necessary to have experts instructed;
Whether the parties want to explore Judicial Mediation to try to resolve the case;
Whether there are applications made within the proceedings, such as for specific disclosure of documents, subject access requests, costs etc.
Whether there are other claims bought at the same time, such as discrimination, whistleblowing, TUPE, collective redundancies etc.

Unless a fixed fee is agreed for the work undertaken, we charge on an hourly rate basis. Currently our fees range from £120.00 plus VAT an hour for a Trainee solicitor to £275.00 plus VAT an hour for a Partner.

We do not offer “no win, no fee” arrangements or Conditional Fee Agreements.

Disbursements

Disbursements are expenses incurred in your matter payable to third parties, such as barristers’ fees, independent medical expert fees, or to us, such as travel expenses and photocopying/printing costs etc. There are no Employment Tribunal fees involved in starting or defending tribunal cases.

We will pay these expenses on your behalf and will require a payment on account before the costs are incurred. We will inform you in advance of these expenses arising.
VAT which will charged at the relevant rate at the time the service is provided; currently 20%.

Stages of a Tribunal Case

For the majority of cases, it is necessary to explore whether settlement of the case is possible before proceedings are started. This involves contacting ACAS Early conciliation. If settlement negotiations are unsuccessful, an Early Conciliation Certificate is issued.
Following receipt of the Early Conciliation Certificate the employee (“the Claimant”) sends a Claim Form to the Employment Tribunal. The Employment Tribunal will send this to the named the Employer (“the Respondent”).
Following receipt of the Claim Form the Respondent is given 28 days within which to send their defence (“known as the Response”) to the Employment Tribunal.
The Claimant prepares a Schedule of Loss and the Respondent is able to prepare a counter-Schedule of Loss.
In most straightforward cases the Tribunal will send out standard “Directions”. Directions set out the timetable of the steps necessary to prepare the case for final hearing.
In discrimination or other types of complex cases, there will be a hearing before an Employment Judge to decide the issues to be decided at the final hearing and set out the Direction, the timetable to get matters prepared for the final hearing. This will require attendance at a Case Management Hearing.
Listing the relevant documents in each party’s possession or control and exchanging them with the other party (known as “Disclosure”).
Meeting with witnesses to take their statements, drafting and amending the same before they are exchanged with the other party.
Reviewing the other party’s witness statements
Preparing a list of issues (to the extent it has changed from the Preliminary Hearing), a chronology of events and a cast list and agreeing the same with the other party’
Preparation, attendance and representation at final hearing. The final hearing will generally also include remedies. If this is not the case due to time limitations, it is possible for there to be a separate Remedies hearing.

The above is a general overview and it might be that there are additional stages required, depending on the nature and facts of the case. For example, it might be that an employee claims interim relief and wants to be reinstated or it might be necessary to instruct a medical expert or have an additional preliminary hearing to decide issues in advance of the final hearing.

Timeframes

If a case is settled during the Early Conciliation procedure, it can take between 4 to 6 weeks to conclude.

The time it takes from the start of a case to final hearing depends on many variables, for example whether experts are involved, the number of case management hearings, and how many days the hearing is listed to take at final hearing. It is possible for cases to take between 6 months to a year or longer. Given the many pressures on the Tribunal Services, the reduction in the number of Employment Judges available to hear cases, the time taken can easily be in excess of one year. It is also possible that a case listed for final hearing can be postponed the day before a final hearing due to the unavailability of an Employment Judge to hear the case.

When the case is listed and for how long, whether it proceeds when it is intended are all factors beyond our control and the above is intended as an indication of the time frames.

Dorlee Monschau has been qualified since 1997 and has more than 26 years’ experience in dealing with employment matters. Her work is supervised by Adam Workman.

If you would like to contact one of our Employment team directly, please see their details below or alternatively click on the Contact Us button.

Dorlee Monschau – [email protected]

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Expert advice across Employment Law

From starting a new job to raising a grievance or claim, our expert lawyers support you through the process.