The ACAS Code of Practice on Disciplinary and Grievances Procedures
The starting point before contemplating litigation is to try to resolve disputes according to the principles set out in the ACAS Code of Practice. That means submitting formal grievances, attending hearings, and formally appealing decisions you dispute. If your claims eventually succeed at an Employment Tribunal but you failed to follow the ACAS Code in the beginning the Tribunal could reduce your compensation award by up to 25%. If, on the other hand, your employer failed to follow the Code and your claims succeed your compensation could be increased by up to 25%. The ACAS Code can be found here.
Employment Tribunal Time Limits and ACAS Early Conciliation
Before you can submit a claim to an Employment Tribunal it is compulsory to first notify ACAS under its Early Conciliation procedure (in virtually all cases).
The time limit to register with Early Conciliation is very strict. Claims for unfair dismissal must be registered within three months of the date your employment ends. For example, if you are dismissed on 10 January you must register with ACAS Early Conciliation by 9th April. To complain about an act of discrimination or a breach of contract you must register within three months of the act or breach. To complain about unpaid wages or holiday pay it is three months within the date the payment was due. The time limit for redundancy payments and equal pay claims is within 6 months.
It is vital you do not miss these time limits as an Employment Tribunal will only ever allow late claims in exceptional circumstances and you should never rely on this. If you fail to register with ACAS in time your claim will probably not be allowed.
What is Early Conciliation and How does it work?
To participate in this procedure you must complete an Early Conciliation Notification Form or telephone ACAS. For further information on conciliation click here or telephone 0300 123 1100. If you appoint us as your legal representative, we can negotiate with the ACAS conciliator on your behalf.
An ACAS conciliator will speak to your employer to see if you can settle your differences. ACAS conciliators should be independent and should not take sides. They should not pass on information to your employer that you do not want to be shared. Conciliation is a confidential process so Tribunals would not take into account what has been discussed during conciliation if you subsequently go to a Tribunal hearing.
Under Early Conciliation procedure, the time limit clock for submitting an Employment Tribunal claim is paused for up to 1 calendar month. This can be further extended by a further 14 days by agreement. If the conciliation period ends without a satisfactory settlement you general have one more month to submit your claim to an Employment Tribunal. Time limits can become tricky depending on when the time limit clock has been paused so you are advised to check with your solicitor and submit your claim as soon as the Early Conciliation procedure ends.
Submitting Your Claim to an Employment Tribunal
Again you must submit your claim within the month after Conciliation ends or your claim will not be allowed. Please note that unless you specifically instruct us to submit the Tribunal claim on your behalf, and we agree to accept your instructions, you will be responsible for submitting your own claim within the statutory claim limit. If we are not instructed to submit the claim on your behalf but you would still like to make a claim, you will need to complete Form ET1 which is available online or from your local tribunal office. Alternatively, you may prefer to lodge a claim online by clicking here.
Costs In The Employment Tribunal
Unlike the ordinary courts, costs are not normally awarded against a claimant who loses an Employment Tribunal claim. The Tribunal only has power to award costs against either a person or their representative who has acted unreasonably, frivolously, or vexatiously, or where the case is “misconceived” meaning that it has no reasonable prospect of success. There are also powers for the Employment Tribunals to hold a Preliminary Hearing, and if they believe a case has a low prospect of success will only allow the person to continue with it if they pay a deposit.
Because costs are not generally awarded against the losing party it does mean that if you win your employer will not be ordered to pay your legal fees. The costs of bringing a claim are therefore something you need to weigh up carefully in the beginning, especially if you do not have insurance cover.
Compensation in the Employment Tribunal
Basic and Contemporary Award for Unfair Dismissal
If you are successful in your claim for unfair dismissal, you will be entitled to a “basic award” which is calculated on the basis of your age, salary and length of service. This is the same calculation used for statutory redundancy payments and can be capped up to 30 weeks pay although this is currently capped at £508 gross per week. If you have already been paid statutory redundancy pay by your employer you will not be entitled to basic award as well.
In addition, the tribunal has the discretion to award you compensation for any financial loss flowing from the dismissal up to a maximum of your gross annual salary of £83,692, whichever is lower (“the compensatory award”). This could include your loss of earnings whilst you are looking for a new job, loss of any benefits, including pension, and any expenses you incur in seeking new employment. You may also be able to claim continuing losses after you start a new job if you are unable to find new work at a comparable salary and/ or with comparable benefits. Any state benefits which you have received following your dismissal can be deducted from loss of wages compensation ordered by the Tribunal.
“Injury to Feelings” Compensation for Discrimination and Whistle-Blowing Claims
These awards come in three bands known as “Vento” bands (after the case of Mrs Vento). The awards range from£900 for very mild, one-off act of discrimination to £42,900 for the most serious cases where the claimant has been subjected to ill treatment over a long period and usually has injury to health as well, such as anxiety disorder or depression. (Awards made at the highest end are very rare). Aggravated damages can also be awarded where the employer’s behaviour has been particularly abusive. Interest is added to injury to feelings compensation.
It is vital to “mitigate your loss” and prove it.
Please be aware that you are under an obligation to mitigate your losses by looking for another job. We would therefore recommend that you commence a thorough search for new employment as soon as possible. For example, you should register with employment agencies, online job sites and with the Job Centre and regularly search appropriate newspapers, trade press and online for suitable vacancies.
It is important that you keep comprehensive documentary evidence to show the steps you have taken to mitigate your losses, including copies of advertisements for the jobs you apply for, applications you make and the responses you receive. You should also make a note of the reasons why any apparently suitable positions have not been pursued. It can be useful to keep a diary recording steps taken in your job search, for example, recording details of telephone conversations with recruitment consultants and prospective employers.
The Tribunal may reduce the amount of compensation payable to you if it considers that you have not taken reasonable steps to find new employment. While the onus will be on your employer to show that you have not done enough to find a new job, rather than on you to prove that you have, we would strongly recommend that you keep copies of all the documents relevant to your job search in order that you can defeat any argument on mitigation your employer may raise.
Any state benefits which you have received following your dismissal can be deducted from your loss of wages compensation as your employer will be ordered to repay state benefits.
Settling your Claim
It is possible that an offer of compensation would be made to you to avoid having to go to Tribunal. This will be done either by the employer or their representative, or by ACAS. ACAS have a statutory duty to try and settle claims. If an offer of compensation is made to you, we will take your instructions and communicate these to you. We will not agree any financial settlement on your behalf without your express authority to do so.
We will try to obtain the best outcome for you and advise you when a settlement is appropriate. Statistics suggest that the majority of Tribunal cases are settled out of court. A typical settlement will carry a form of agreed wording, an agreement reference and financial pay out.
Making a Claim in the County Court
It is also possible to bring a claim in a County Court for breach of contract for damages or a sum due under the contract where the time limit is 6 years. However, the employer would be entitled to counterclaim in a breach of contract action. You cannot submit unfair dismissal, whistleblowing or discrimination claims to the County Court.
Costs in the County Court and High Court in England and Wales are entirely at the discretion of the Court. However, they generally “follow the event”. This means if you win an action the other side is likely to be ordered to pay your costs. Should you lose, the reverse is likely to be ordered. Generally, if an order for costs is made in your favour you will recover in the region of 60 – 80% of your total costs from the other party. As always, with any judgement, it is only as good as the other side’s ability to pay.
It may be worth pursuing a breach of contract claim in the County Court if you have a high value claim with strong merits and so a strong chance of recouping as good proportion of your legal fees. On the whole, though, an application to an Employment Tribunal is quicker and simpler and you avoid the risk of paying your employer’s costs if you lose.
It is important to advise you of the potential funding options that may be available to you. We have dealt with each option briefly below. If you have any questions arising from these, please let us know:
1. It is usually for clients to privately fund a case such as your own. This means that you will be charged at the usual hourly rate for all work undertaken on your behalf or as agreed in your client care letter. The hourly rate will depend on the seniority of solicitor with conduct of your case.
2. It is now becoming more common for clients to have legal expenses insurance included within an insurance policy such as contents insurance or credit card insurance. We strongly recommend that you consult any policy documents you may have to ascertain whether you have the benefit of legal expenses insurance policy. If you do, you will then need to contact the insurance company to find out whether they will cover a dispute of this nature, as it may be restricted to certain types of dispute.
3. We may be able to conduct your case under a Damage Based Agreement (typically known as a no-win, no fee arrangement). In order to do this we would need to charge you for the time taken to review the case to ascertain the likelihood of potential success.
4. If you are in a trade union they may be willing to fund your claim. Be aware that you can only have one representative at a time and your union will withdraw support if you instruct a new solicitor to make formal representations on your behalf. You are free however to instruct a new solicitor to review your papers and give a second opinion. Providing they do not go on record you will not jeopardise your trade union support.
5. Unfortunately Legal Aid no longer covers employment disputes. Some limited legal aid is available through the government funded “Civil Legal Advice” when there is discrimination at work and the employee is on a low income. If you feel this applies to you call Civil legal Advice on 0345 345 4345 for further assistance. 6. It may be possible for you to find a solicitor or other organisation (such as Citizens Advice Bureau) to conduct this matter on a pro-bono basis, which means that they would not charge for the legal work. You can access further information about this here.
7. Finally, you can contact ACAS (Advisory Conciliation and Arbitration Service) for free confidential advice on 0300 123 1100.