Amongst the full range of advice and representation which our team provides to employers, we frequently defend unfair and wrongful dismissal claims. It is rare for such claims to stand alone, without accompanying allegations of discrimination, whistleblowing etc. These additional claims remove the need for 2 years’ service to bring a claim for unfair dismissal and remove the cap on the compensatory award for unfair dismissal of one year’s pay (or £83,682, whichever is lower). They also make cases significantly more complex and expensive to defend, impacting not only on the evidence we need to collate but the length of any tribunal hearing. The outline of fees and steps below is intended only to cover defending cases where the sole claims are unfair and/or wrongful dismissal.
What is involved in a wrongful or unfair dismissal claim?
Most of the wrongful or unfair dismissal matters we help clients to defend follow a standard process which we have broken down into 6 key stages to help you understand what will happen and the potential costs associated with the work we will need to do for you.
1- Assessment (Potential stage fees £1,000 - £2,500 plus VAT)
We will assess the claim that has been asserted – either at the ACAS Early Conciliation stage or once Employment Tribunal proceedings have been commenced, and advise you on your prospects of successfully defending the claim, the value of the claim, and (where appropriate) the potential level of a commercially sensible settlement. At this stage we will assist you in liaising with the Claimant and/or ACAS to seek to settle the claim if that is your preferred route.
2- Drafting the Response (ET3) (Potential stage fees £1,750 - £3,500 plus VAT)
We will draft the Response to the claim which has been brought. This will often require us to review relevant documents, and to put questions to the key individuals involved in the dismissal process. In urgent cases it may be necessary to undertake this stage ahead of the assessment stage.
3- Disclosure of Documents (Potential stage fees £2,500 - £5,000 plus VAT)
You will be required to disclose all documentary evidence that is relevant to the case, whether or not it is helpful to your defence. This may include, amongst many other things, video footage, meeting minutes, emails, diary entries, letters. This evidence will need to be reviewed, organised and catalogued. We will often need to consider issues such as whether documents are not disclosable because, for instance, they are privileged, or they are ‘without prejudice’. The Claimant in turn, will send you their documentary evidence, which will need to be considered. A final consolidated ‘bundle’ of relevant documents for the tribunal will need to be prepared, including being paginated and indexed. It is usually ordered that the Respondent to the Claim should do this. Multiple copies will need to be provided for the tribunal’s use.
4- Preparation of witness statements (Potential stage fees £2,500 - £7,500 plus VAT)
Detailed written statements will need to be prepared for all witnesses who can give evidence in support of the defence of the Claim. The witness statements need to cross-refer to the documents in the bundle. The cost at this stage will depend very much on how many witnesses you have. It will also depend on the complexity and length of the statements.
5- Preparation for the hearing (Potential stage fees £1,000 - £2,500 plus VAT)
This stage involves liaising with the barrister instructed to represent you at the hearing, preparing any other documents ordered by the tribunal (such as a chronology or cast list) and dealing with all logistical matters (e.g. seeking to agree the running order of the hearing, dealing with late disclosure, conducting calls / conferences with the barrister, fielding last minute queries etc.)
6- Tribunal Hearing (Potential stage fees £5,000 - £7,500 plus VAT, assuming a 1-2 day hearing)
Typically unfair/wrongful dismissal cases last 1-2 days. The potential stage fees above would be inclusive of the fees for the barrister for the hearing, on the basis that a relatively junior barrister was instructed and that they attended without a solicitor present.
How we calculate our charges
Our fees are charged based on an agreed hourly rate structure dependent on the experience of the individual working on your matter and the complexity of the issues we need to address. Our usual hourly rate ranges (exclusive of VAT and disbursements) are £125 to £460.
In appropriate cases, we may offer discounted fees or a fixed fee option if we feel this approach is suitable to your matter. In a potential fixed fee case we will assess the work necessary for the defence of the claim and provide you with a proposed fixed fee. Where we do this we will set out what work we will do for that fee. If additional complexities arise these may incur additional costs, but we will discuss this situation with you promptly if it arises.
What other costs might there be?
In addition to our fees there may also be additional costs which are payable to third parties who help us to prepare and support your case. We call these disbursements. We handle the payment of these on your behalf to ensure a smoother process. We will inform you of any significant disbursements before they are incurred. Typically in an unfair dismissal or wrongful dismissal claim these would only be barrister’s fees. As outlined above, we have included the barrister’s fees for the tribunal hearing itself. If additional work was required from the barrister (such as preparing a written advice on prospects of success) this would be charged separately. The normal hourly rates of the barristers we would instruct on such matters would be in the region of £150 - £300 (plus VAT).
All of the costs set out above will vary depending on the factors set out above. We have set out below a couple of case studies to give you a greater understanding of how complexity could affect the costs associated with the matter you are defending. Even if you successfully defend an unfair or wrongful dismissal case you should not expect to recover your costs from the unsuccessful Claimant as costs are not normally awarded to the winning party in employment tribunals. A costs award is exceptional, and based on unreasonable conduct of the other party.
Your organisation may have a policy of insurance which covers your defence of employment tribunal claims. It is important to check this at the outset and to notify your insurers of any claim that is asserted straight away.
You can find details of our experienced team of lawyers here on our website.
We successfully defended a claim for constructive unfair dismissal for a Further Education Institution. The Claimant was a lecturer who made multiple allegations of bullying and aggressive behaviour by her line manager and others, which were not upheld by the tribunal. There were four witnesses for the employer. The case unusually took three days in the Employment Tribunal. Costs were approximately £25,000 (plus VAT), including Counsel’s fees.
We successfully defended a claim for unfair dismissal brought against a voluntary aided primary school. The Claimant was employed by the school in a support staff role and was summarily dismissed on the grounds of dishonesty as she had falsely declared that she had no criminal convictions. On appeal the Claimant was reinstated with a final written warning. Soon afterwards the Claimant was absent from her duties without authorisation. A second disciplinary hearing was convened and the Claimant was dismissed on notice for misconduct.
There were two witnesses for the employer and the hearing lasted one day. As the factual background was complex due to the two dismissal situations, the costs were approximately £22,000 (plus VAT) including Counsel’s fees.