Defending an Employment Tribunal Claim

Defending employment tribunal claims can be extremely disruptive and costly to a business. If an employee or former employee brings an employment tribunal claim against your business, having an experienced employment solicitor  on your side to help you navigate the employment tribunal process and defend the claim will minimise the impact of an employment tribunal claim on your day-to-day business.

Here are answers to some of the most common questions employers have when faced with defending an employment tribunal claim.

How much are legal fees to defend a claim at employment tribunal?

Both employers and employees are permitted to represent themselves at tribunal, which will prevent incurring legal fees. However, it is more commonplace for both parties to instruct a solicitor to represent them in order to deal with the complex legal arguments and the case management orders set by the tribunal.

It is difficult to assess what the legal fees will be without knowing what claim you will be defending. However, a broad estimate is that an employer’s legal fees can amount to anywhere between £10,000-£65,000 to defend a claim at tribunal.  It is usually more costly for employers to defend claims than for employees to bring claims, because the employer typically calls more witnesses – which means drafting more statements – and it is common for the employer to have to produce the bundle of documents used in the tribunal hearing.

Legal fees are, of course, dependent on the complexity of the case and the number of days over which the claim is to be heard.  Once we have had sight of the employee’s claim form, we would be able to provide a more definitive fee estimate.

Are there any other ways which employers can fund their defence?

Employers may be able to fund the defence through their business insurance.  Insurance will often cover the legal fees to defend the claim.  If the employer is unsuccessful at tribunal, insurance may cover the cost of the award that the tribunal orders the employer to pay to the employee. Call us for tailored advice.

Does the loser pay the winner’s costs at tribunal?

No, employment tribunals do not operate like the civil courts.  The loser does not pay the winner’s costs apart from in exceptional circumstances. This means that the employer will more than likely pay their own legal fees irrespective of whether they successfully defend the employee’s claim.

At what stage will employers start to incur legal fees when defending a tribunal claim?

Employees are obliged to notify ACAS of their claim before they submit it at the tribunal. The ACAS Early Conciliation procedure typically lasts for four weeks and gives the employee and you the opportunity to negotiate a settlement.

Both employees and employers are able to negotiate on their own behalf with ACAS. However, it is beneficial to appoint a solicitor at this crucial early stage, as a good result can prevent expense in the long-term as it will prevent the need to go to tribunal.  There may also be terms that you can get as part of the deal that you did not know about beyond just getting the employee to drop their complaint. Once you have done the deal, it will be too late to try to insert new terms or change those ones agreed.

If an employer appoints a solicitor during the ACAS Early Conciliation procedure, this is the first point at which legal fees will be incurred. Otherwise, the first point at which legal fees will be incurred will be when the employer is required to submit a defence with the tribunal in response to the employee’s claim, called the ET3.

If you need advice defending a claim at tribunal, or during the ACAS Early Conciliation procedure, please contact us.

We are also able to provide advice to businesses about how to avoid employment tribunal claims in the first place and offer cost-effective HR retainer packages and HR training workshops to protect your business.