Employment Tribunals

Bringing a claim in the Employment Tribunal can be a daunting experience. In order to maximise the prospects of succeeding in a claim, or the level of settlement, having an experienced solicitor on your side can make all the difference.

Each year our team represents scores of individuals in Employment Tribunals and we know what it takes to win a case or to get the best possible result out of court.

Some of the types of claims we represent our clients on are detailed below.

In order to bring a claim in the Employment Tribunal a Claimant must first engage the ACAS Pre-claim Conciliation Service.  This must be done within 3 months of the act complained of.

The purpose of the ACAS Pre-claim Conciliation is to try and resolve the claim without the parties having to incur the time, costs and stresses and strains of Employment Tribunal proceedings.

Whether or not an employer will have the appetite to settle a claim before it is brought will depend on a variety of circumstances.  However, having an experienced specialist Employment Lawyer representing you throughout the ACAS conciliation period can increase the chances of getting a good settlement early, by properly explaining the legalities of the proposed claims and setting out the potential liabilities for the employer.

Where a settlement is reached during the ACAS conciliation the parties will enter into either a COT3 Agreement or a Settlement Agreement which will include a payment of compensation in return for an assurance that you will not pursue the claim any further.

If you have left your job because you simply couldn’t take it anymore, you may have a claim for constructive unfair dismissal.

Just like unfair dismissal, you need to have two years’ service to bring a claim for constructive dismissal, unless your resignation was linked to an act of discrimination or whistleblowing; in which the 2 year requirement may not apply.

To succeed in a claim for constructive unfair dismissal you need to show that your employer acted in “repudiatory breach” of your Contract of Employment, and that you resigned in response to that breach.

Establishing that you have been constructively dismissed is difficult and we recommend that, where possible, you take advice before taking the decision to resign so you can maximise the prospects of bringing a successful claim.  For example, it may be that the issues that you seek to rely on are not sufficiently serious to amount to a repudiatory breach of contract, or you may have waited too long to resign.  In those circumstances we can advise you on raising grievances or an appropriate exit strategy to improve your position, minimise risk and maximise potential compensation.

Compensation for constructive dismissal is calculated in the same way as unfair dismissal: –

  • Basic award – this award is subject to the individual’s age, length of service and what you are paid. A week’s pay is capped at £508 and there is a cap of 20 years’ service that can be included: –
    • 5 weeks’ pay for each year worked when aged 41 or over
    • 1 weeks’ pay for each year worked between ages of 22 and 40 inclusive
    • 5 weeks’ pay for each year worked aged 21 and under
  • Compensatory award – this is to reflect loss of earnings. There are various factors that can increase of decrease the award and expert advice can assist in properly assessing the value of your claim.  The maximum award is the lesser of one year’s gross pay and £83,682.

The statutory cap does not apply where the constructive dismissal is connected to an act of discrimination or whistleblowing.

The Equality Act 2010 prohibits any discrimination in the workplace that relates to sex, age, race, religion, sexual orientation, disability, gender reassignment, maternity or marriage (protected characteristics).  There are various types for unlawful discrimination: –

  • Direct; indirect; harassment; victimisation; failure to make reasonable adjustments; discrimination arising from disability.

Unlike claims for unfair dismissal and constructive dismissal any worker or employee has the right not to be discriminated against from their first day at work.  Indeed, individuals can also bring claim for discrimination in relation to the recruitment process for a job.

Discrimination is sometimes intentional, but more commonly discrimination is unintentional and is borne out of a lack of understanding of the particular protected characteristic.

Discrimination can occur over long periods of time. If you are contemplating bringing a claim for discrimination it is important to be wary of the strict time limits that apply as to when the claim can be submitted.   A claim for discrimination must be submitted within 3 months of the act complained of.  If there has been a series of events over a period of time, however, then the 3 month time limit attaches to the most recent act complained of.

Compensation for discrimination claims can vary enormously depending on the circumstances.  A Tribunal will award compensation that is “just and equitable” in the circumstances.

If you have lost your job you can claim loss of earnings and, unlike unfair dismissal and constructive dismissal, there is no statutory cap on how much you can claim.  You can also claim awards for injury to feelings, psychiatric damages and aggravated damages.

We appreciate that bringing claims for discrimination can be a very sensitive and it is not all about compensation.  If you believe that practices at your employer need to be addressed to prevent discrimination occurring again, we can help in trying to achieve that.

Given the complexities of a discrimination claim, it is important to obtain expert legal advice to ensure that it pleaded correctly and the key issues are properly addressed within the Claim Form and witness statements.

If the company that you work for has changed hands, or if the job that you do has been outsourced to a new provider, there is a good chance that you will have been subject to a TUPE transfer.

TUPE serves to protect worker’s rights and terms and conditions of employment where there has been a business transfer or service provision change.  It also places certain obligations on the organisations that are involved in the transfer to inform and consult affected employees about the reasons for the transfer and the legal, economic and social implications of the transfer.

The law surrounding whether or not TUPE applies, and if it does apply, how the consultation obligations work, is complex and can lead to disputes between affected employees and the companies involved in the transfer.

Where there has been a failure to inform and consult affected employees about the transfer each affected employee can be awarded up to 13 weeks’ pay by way of a protective award.

If the circumstances surrounding a TUPE transfer have also led to a dismissal, there can be related claims for wrongful dismissal, unfair dismissal and redundancy pay.Our specialist employment team has a wealth of experience in advising clients in relation to TUPE matters and can represent individuals or groups of individuals in employment tribunal proceedings against the appropriate parties.

Being dismissed from your job doesn’t only have a huge financial impact on you, it can also have a massive psychological impact.  If you have been dismissed, expert advice can make a real difference in understanding the value of the claim, the legalities of the claim and moreover to guide you through the Employment Tribunal process.

In order to bring a claim for unfair dismissal, employees need to have at least two years’ continuous service.  This does not apply where the dismissal is linked to underlying discrimination or whistleblowing however.

When considering a claim for unfair dismissal, the Employment Tribunal will first consider whether there is a potential fair reason to dismiss.  The five potential fair reasons to dismiss are: –

  • Conduct
  • Capability or performance
  • Redundancy
  • Some other substantial reason
  • Statutory illegality

If there is a potentially fair reason to dismiss, the Tribunal will then go on to consider whether the employer has followed a fair process and whether the dismissal was within what is known as the “band of reasonable responses”.

Whether or not the dismissal is fair or unfair is rarely clear.  Individuals will often miss key points when pleading their claim, which could be the difference between winning and losing.  Our experts can review your situation carefully and highlight factual flaws and faults in the process to ensure that your case is pleaded as well as it possibly can be.

Compensation for unfair dismissal is split into two heads; the basic award and a compensatory award.  Both are subject to a statutory cap (unless they are linked to underlying discrimination or whistleblowing):

  • Basic award – this award is calculated on your age, length of service and weekly pay. A week’s pay is capped at £508 and there is a cap of 20 years’ service that can be included;
    • 5 weeks’ pay for each year worked for aged 41 or over
    • 1 weeks’ pay for each year worked between ages 22 -40 inclusive
    • 5 weeks’ pay for each year worked age 21 and under
  • Compensatory award – this is to reflect loss of earnings. There are various factors that can increase or decrease an award and expert help is advised in order to ensure that you set realistic expectations.  The maximum award is the lesser of one year’s gross pay and £83,682.

If you have raised concerns with your employer or another prescribed person about; a crime; miscarriage of justice; health and safety breaches; damage to the environment or a concealment to any of these, then you may be “whistle-blower”, if your disclosure was in the public interest.

If you have been subjected to any detriment by your employer, or worse still, have been dismissed by your employer because you have blown the whistle, you may be able to bring a claim in the Employment Tribunal.

What constitutes “whistleblowing” is legally complex.  Individuals may often think that they are a whistle-blower when they are not.  Conversely, many people will be a whistle-blower without knowing it.

Like claims for discrimination, compensation for whistleblowing claims is assessed on a “just and equitable” basis.  A Tribunal can award compensation for injury to feelings and unlimited compensation for loss of earnings.