We set out the steps commonly involved in preparing for an employment tribunal hearing.
- Drafting the claim form (ET1) and reviewing the response (ET3) – or vice versa depending on who is opponent
- Drafting further questions about the response/claim and considering responses
- Preparing a list of issues and agreeing it with opponent
- Preparing for and attending preliminary hearings at the tribunal for case management and other directions about how the case will be heard
- Preparing for and attending preliminary hearing for a decision about a stand-alone legal issue e.g. is the claimant disabled
- Calculating and drafting a schedule of loss (to indicate the compensation the person bringing the claim is looking for)
- Checking the schedule of loss and responding (if acting for the employer)
- Making applications to the tribunal – and responding to applications made against you
- Liaising with opponent regarding issues, evidence and possible settlement
- Liaising with you
- Liaising with tribunal
- Liaising with barrister and other experts e.g. doctors
- Reviewing and preparing documents to be sent to opponent (disclosure)
- Reviewing opponent’s documents disclosed during disclosure exercise
- Agreeing documents bundle and indexing it
- Meeting with witnesses to discuss issues for witness statement
- Drafting witness statements
- Reviewing opponents’ witness statements with you
- Attending hearing
- Managing any publicity/PR issues, dealing with journalists reporting the hearing
- Reviewing tribunals decision and, if necessary, considering if from appeal an option
Why are legal fees for employment tribunal claims so high?
As the list shows, there is a significant amount of different types of work for a solicitor to do when bringing or defending a claim on behalf of a client in the employment tribunal. Clients are often baffled as to why legal bills for litigation are so high. The short answer is that this bringing or defending a legal claim is very labour intensive and is often highly reactive i.e. you have to respond to what your opponent does and you do not have control over that, their actions can create the need for work to be done. In addition, the whole process takes a significant amount of time – often up to a year – and, when it comes to legal fees, time is money!
In the employment tribunal (unlike in the ordinary courts, where the loser pays most of the winner’s costs), it costs nothing to start a claim but, each side generally bears their own costs. Only in certain very limited circumstances can some costs be recovered from your opponent. It is therefore important to consider how you will cover the legal costs of bringing an employment tribunal claim. For example:
- do you have a legal expenses insurance policy?
- does your home/car/mortgage/ other insurance policy give you cover for legal fees for employment claims?
- are you a trade union member, will your union contribute towards your fees?
- are there non-traditional routes you could consider such as crowd-funding?