Martin Malone discusses the key issues to consider about the outcome which no-one wants but is sometimes necessary.

In most cases Employment Tribunal litigation should be a last resort. Over the decades that we have been practising employment law, we have learned that most disputes arising within employment can be dealt with via negotiation and compromise. Even cases involving dismissal or constructive dismissal when the employee has left employment and has a viable cause of action against his or her previous employer can often be dealt with without the need for litigation. If proceedings are issued, the majority of cases are settled via compromise agreements before a hearing. However, in some instances, mainly when the sides are entrenched and the employer is unwilling to settle, it is necessary to take a case before the Employment Tribunal in order to best serve the interests of our clients.

At Canter Levin & Berg, our employment lawyers have extensive experience of dealing with employment law litigation in the Employment Tribunal and Employment Appeal Tribunal and regularly appear as advocates before both. Please read our senior lawyers' profiles for areas of expertise and experience. We always ensure that the client's interests come first, that our clients have a full case plan at from the outset, that costs are agreed beforehand and managed within tight margins and that our clients always have a direct line of communication with their lawyer. Unlike many law firms, our lawyers don't have caseloads numbering in the hundreds and we put quality of advice and outcome at the forefront of our practise rather than volume. Employment law is complex and technical, nowhere more so than in the Employment Tribunal. We strongly advise that all employee litigants take legal advice before embarking upon a case.

Employment Tribunal Information

Limitation

Employees have three months from the date of termination to lodge a claim in the Employment Tribunal for claims of unfair dismissal and constructive dismissal, wages and contractual claims. Employees also have three months from the date of a discriminatory act to make a claim. Limitation can be quite a complicated area when dealing with non-routine cases so it is vital that legal advice is sought early on.

Compensation

Compensation for unfair dismissal in the Employment Tribunal is based on loss of earnings and currently capped at £65,600 and awards for a basic award capped at £11,400.

For claims of discrimination and whistle blowing, compensation is potentially unlimited. Awards for discrimination are generally made up by awards for injury to feelings and health (£750 - £30,000), awards for loss of chance (unlimited), awards for aggravated damages (usually less than £20,000) and awards for loss of earnings (unlimited).

Contractual claims are limited to £25,000 but this cap does not apply to claims for wages as the Employment Tribunal has sole jurisdiction to deal with wages disputes.

Qualification

In order to have a claim for unfair or constructive dismissal the employee will generally have to have at least one year's service. This qualification does not apply if an employee has been dismissed for raising issues which are capable of formulating a claim in the Employment Tribunal, whistleblowing or dismissal for discriminatory reasons. There is no qualification period for claims of discrimination or any other claims arising from the employment contract such as wages.

Time frames

After form ET1 has been lodged by your lawyer, the employer has 28 days to lodge a Response. After this has been lodged, the Employment Tribunal may call a Case Management Discussion to clarify the issues and set directions for a hearing or a Pre-Hearing Review if there are complex legal issues to determine prior to a hearing. In general, an average case will take between 6 - 9 months between lodging the ET1 form and determination at a full hearing. This period may be extended if the case is complex or requires a long hearing.

Representation

Under ordinary circumstances, your employment lawyer will represent you at the hearing. This ensures continuity of service which we believe is essential in almost all cases. If the matter is extremely complex or it is cost effective for you, we may recommend instructing a barrister to advise or even represent you at the Employment Tribunal hearing.

Costs and Funding

We accept in instructions for Employment Tribunal work on the following terms:

• Hourly Rate - the rate will depend upon the experience and seniority of your lawyer and will be agreed with you beforehand. We will always provide you with an estimate of your total costs at the beginning of the case and update you should the position change.
• Fixed Fee - a fixed fee is agreed to undertake either the entire case or for each part of the case as and when the requirement arises.
• Legal Expenses Insurance - if you have household or motor insurance, you may be entitled to claim on your insurance policy for legal expenses in the Employment Tribunal. If you believe you enjoy the benefit of such a policy, please inform your employment lawyer when you provide your initial instructions. We will need a copy of the policy and will liaise with the insurer on your behalf.

We do not accept instructions on a No Win/No Fee basis unless we determine that the amount of compensation recoverable is over £25,000 and the client insists upon this method of funding.