Questions about your claim

To bring a claim in an Employment Tribunal you must be a job applicant or employee. Whilst this may seem a relatively straight forward and obvious requirement, in some instances it can involve a careful balancing of the facts to determine your true status as the label alone is not determinative.   For example, you may have always considered yourselves to be self-employed however you may actually be an employee and therefore benefit from the enhanced rights associated with this status.

If you are a job applicant and think that the reason you have not succeeded in a job application is discriminatory, i.e. because you possess one of the nine “protected characteristics” recognised in our equality legislation, i.e. your race or sex etc., you may have a discrimination claim.  This is a difficult claim to bring as the burden is on you to establish the discrimination that you allege.

As an employee you can bring various claims both during your employment and following its termination.  Examples of the type of claims that can be issued during employment are as follows:

• unlawful deduction from wages
• discrimination
• whistleblowing – for detrimental treatment
• detrimental treatment for asserting a statutory right

Once you have been employed for one year or more (if you commenced employment on or before the 5 April 2012) or two years or more (if you commenced employment on or after 6 April 2012) you have the right not to be unfairly dismissed.  Therefore, if your employer wants to dismiss you they have to do so for one of five potentially fair reasons.  These reasons are as follows:

• conduct
• capability
• redundancy
• illegality
• some other substantial reason

However, a fair reason alone is not sufficient and your employer must also follow a fair and reasonable procedure in dismissing you.  Such a procedure varies for each of the different reasons for dismissal. However, a good rule of thumb that your employer should follow is to ensure that you have been informed of the reason, you are invited to a meeting to discuss it at which you have the right to be accompanied, and if this meeting leads to dismissal that you have been given the option to appeal the decision.

If you do not have the necessary period of service to be able to bring an ordinary claim of unfair dismissal there are some special case unfair dismissal claims that you can consider.   If you have been dismissed because you are pregnant, because you are a trade union activist, because you have made public interest disclosures (you are a whistleblower) or have raised matters of health and safety then you may be able to bring a claim regardless of your length of service.

Similarly, if your claim is based on discrimination then there is no requirement to complete a period of service to be eligible to bring a claim.

If eligible, you may be able to bring a constructive unfair dismissal claim as a result of your resignation. Essentially for this type of claim you would need to prove that your employer gave you no choice but to resign and therefore they constructively dismissed you.

To succeed in such a claim you need to be able to show that:

• there has been a fundamental breach of your contract of employment
• you resigned in response to this
• you resigned without undue delay

A fundamental breach would be a breach of your contract of employment, for example a failure to pay you, or a breach of implied terms.  The most common implied term which is often the subject of constructive unfair dismissal claims is that of mutual trust and confidence. All employment relationships are based on trust and confidence so if your employer does something to undermine the trust and confidence you have in this, this could give rise to a constructive unfair dismissal claim if you resign in response to this behaviour.

You must have resigned in response to the breach and not, for example, to go to a new job.  It is useful if your resignation letter sets out the reasons for your resignation.

Your resignation must have been prompt, ideally, within two weeks of the breach.  If you have been on long term sick then the Employment Tribunal may be prepared to allow you more time to resign but you still need to demonstrate it is in response to the breach.

There are various options when it comes to funding a claim.  In order of preference you can:

• use legal expenses insurance
• pay privately
• represent yourself

The most common place to find legal expenses insurance is on a home contents policy (whether you rent or have a mortgage).  You may have such a policy but are not aware of it as it may be referred to by something vague such as ‘Family Protection’.  It is an invaluable resource if you have a potential Employment Tribunal claim as, subject to a means and merits assessment, they will cover your legal fees (as per their terms and conditions) and they have to allow you to instruct a solicitor of your choice once the claim is issued.

It is possible but not usual for costs to be awarded in the Employment Tribunal.  As a result it is common practice for each side to pay their own costs, meaning that the winner does not recover their costs from the loser.

You will have three months less a day from either your last day of employment or the last act of discrimination that you are complaining about to issue your claim.  It is therefore vital that you seek advice as soon as you can and preferably before any resignation or dismissal.

The first step is to arrange a meeting with us to discuss the merits of your claim and to talk about the different funding options.

We will contact Acas Early Conciliation for you if you decide to also use us to represent you in this manner. If your claim is then to proceed, we will draft the claim and liaise with the Employment Tribunal and your employer or their representatives will prepare the documents required for a Tribunal hearing such as lists of documents, the bundle, a schedule of loss and witness statements. We will also arrange representation for you on the day of the hearing.

Whilst the majority of claims settle, this is not something that can be relied upon. Therefore, if you issue a claim you need to be prepared to go to the hearing or later withdraw the claim.

The majority of cases settle but each employer approaches a Tribunal claim in a different way.  Some will adopt a policy of not settling claims to ensure that they do not get a reputation for doing so, which in turn may encourage claims which lack merit but are issued with a view of achieving a settlement of some kind.  Others will take a commercial decision and be prepared to negotiate.  For example, they may take the view that they will offer a sum which equates to what they will pay in legal representation to get rid of the claim.

The average length of a claim is 6 to 12 months, however this is different for every claim and is usually dictated by its’ complexity.

Claims can be delayed for various reasons, such as small hearings being needed to determine preliminary issues before the final hearing, postponement of the hearing due to witness unavailability, or hearings not being completed in the time allotted and having to be re listed for another day.

In an unfair dismissal claim, the compensation awarded consists of two elements. These are the basic award and the compensatory award.

The basic award is a figure which reflects your age, length of service, and gross weekly salary. It is calculated in the same way as a statutory redundancy payment, as follows:

• Half a week's pay for each complete year of employment when the employee was below the age of 22;
• One week's pay for each complete year of employment when the employee was between the ages of 22 and 40 inclusive; 
• One and a half week's pay for each complete year of employment when the employee was over the age of 41.

A week’s pay is capped at an amount set by the government each year, taking inflation into account.

The second element of the award is called the compensatory award and is at the Judge’s discretion in their assessment of loss. It is meant to compensate you for loss arising from unfair dismissal or acts of discrimination and can consist of the following:

• Loss of salary (net), pension contributions, and other benefits from the date of dismissal to the date of the hearing;
• The cost of securing new employment (or setting up your own company in some instances); and
• Reasonable future losses, including; salary (net), pension contributions, and other benefits.

If you are pursuing a deduction from wages claim, your compensation (should you be successful) will equate to what you have deducted.

If you remain employed and issue a whistle-blowing (for detrimental treatment) or discrimination claim, your losses are limited to an injury to feelings award. If you issue an unfair dismissal claim and discrimination or whistle-blowing claim, the injury to feelings award will be in addition to any basic and compensatory award.

There are four bands for such an award which reflect the severity of the situation: 

• £990 to £9,900 for the less serious cases
• £9,900 to £29,600 for cases that do not merit the upper band
• £29,600 to £49,300 for the most serious cases
• £49,300 and above for the most exceptional cases

Those bands change annually and take into account inflation rates.

There are various reasons why compensation may be reduced:

• To take account of earnings since dismissal – any earnings you have received since being dismissed should be deducted from what you are claiming
• A failure to mitigate – if you issue a claim you have a duty to mitigate or reduce your losses. This means you must keep evidence of your efforts to find alternative work to show the judge. If you fail to do so or do not demonstrate a reasonable effort, your compensation may be reduced by a percentage as determined by the judge
• Contributory fault – if you are deemed to have contributed to your dismissal, for example if you bring a claim on the basis that the procedure rather than the reason for dismissal was unfair in a misconduct situation, the Judge may reduce your compensation by a percentage that it deems reasonable to take account of your contribution to your dismissal
• Polkey – again if you are bringing a claim in relation to a poor procedure only, your employer may claim “Polkey”.  This means they are acknowledging their procedure may not have been correct but maintain you would have been dismissed at the end of a fair procedure in any event. Therefore, any award should be limited to the period of time it would have taken to carry out a fair procedure
• Atate benefits – if you have received Job Seekers’ Allowance or Income Support following dismissal, the Government (through Job Centre Plus) is able to recover the cost of those benefits through the process of recoupment

If you are successful in your claim, and have paid privately or used your legal expenses insurance, you keep all of your compensation.

Unlike the civil courts, it is not automatically the case that the loser pays the winner’s costs in the Tribunal.  Whilst it is possible for the Tribunal to make a costs award at the end of the case, this is rare and happens in around 400 to 600 cases each year.

Therefore, unless you pursue a case that clearly has no merit or act unreasonably or vexatious in the way you conduct your case, you should not be at risk of costs award.  You should not therefore pursue a Tribunal claim on the basis that you will be able to recover your costs from the other side if you are successful.