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I was unfairly dismissed for poor performance/gross misconduct

If you have been unfairly dismissed for poor performance or gross misconduct, we understand that this could create a significant risk to the career you have worked hard to build and your future career prospects.

The law protects employees from unfair dismissal. There are only five potentially fair reasons for dismissal including capability, conduct, redundancy, illegality, or some other substantial reason that would justify dismissal. Not only do employers need to have a fair reason for dismissal, but they must also act reasonably and follow a fair process in dismissing an employee.

The employment team at Vardags is highly experienced in advising senior executives on complex employment issues. We fight tirelessly for our clients rights, provide commercial advice to secure an exit on the best possible terms, and have an excellent reputation for successfully pursuing litigation in the Employment Tribunal to achieve brilliant results and swift resolutions to our cases.

Frequently Asked Questions

There is no legal obligation for employers to provide a reference and in the case of gross misconduct it is not unusual for an employer to refuse to provide a reference. When providing a reference employers have a duty to take reasonable care that it is true, accurate, and fair.If your current or previous employer has provided a misleading reference, they may be liable for any economic loss you have suffered as a result of any negligent misstatement.Subject to the rules which restrict some employers (for example in the context of regulatory requirements), reference wording can usually be negotiated as part of an exit to assist with a smooth transition into your next role.

Dismissal for gross misconduct is the ultimate sanction.On dismissal employees ordinarily receive pay and other contractual benefits during their notice period. Notice periods are set out as an express term in a contract of employment and if not a requirement to give reasonable notice will be implied. In any event, there are laws which require employers to provide minimum notice periods when terminating a contract of employment.In a gross misconduct situation an employer is entitled to dismiss an employee without notice or pay in lieu of notice.If you have been dismissed and need advice about payments on termination, we have the expertise to provide the assistance you need to ensure you receive your contractual entitlements.

Performance (or capability) is a potentially fair reason for dismissal but employers are expected to give employees the chance to improve by running a performance improvement process (PIP) before proceeding to dismissal. This normally involves setting targets for employees to reach over a defined period of time.Many employers will have a policy or procedure in place for dealing with performance issues and dismissing employees. In the event of a claim by an employee an Employment Tribunal will take this into account when deciding whether an employer acted reasonably and fairly.

It is unlawful to discriminate on grounds of a mental or physical disability. One of the most common types of disability discrimination is failure to make reasonable adjustments. This is very relevant where an employer is imposing its standard processes on an employee with a disability who is placed at a significant disadvantage.

If you have been falsely accused of misconduct or poor performance we can help you to challenge these allegations either by advising you in the background to help you raise a grievance and appeal against any disciplinary action that is taken, or by communicating directly with your employer on your behalf.We understand the complexities and sensitivities of difficult employment law situations. Every employer is different and we will work with you to find the right approach in order to achieve the best possible outcome for you.

Overview

Vardags has decades of experience working on high value employment disputes, obtaining the very best results both in and out of the courts and tribunal for individuals and companies.

Our service is Director-led and specifically tailored to your circumstances and needs.

We specialise in handling complex and high-value employment issues and claims on behalf of, or involving, directors, shareholders, executives, senior management and employees. Many of our cases involve both High Court litigation and employment tribunals, for example, where there are issues of shareholder prejudice. We also have considerable experience in acting for clients involved in serious cases of sexual or other harassment; discrimination cases; and those involving whistle-blowing.

We support and guide employers, from SMEs to public companies, through business reorganisations, including transfer of undertakings, redundancies and mergers. Our aim is to keep our clients out of the courts, but where this is not possible, we provide representation at the High Court and employment tribunals.

TeAm

Frank Ryan, Director and Supervisor

Caroline Graham, Consultant

The team is also assisted by trainee solicitors, who normally spend three to six months in the employment department as part of their general training.

Key Stages

Where your employment matter becomes contentious, the scope of our work normally includes:

  1. Taking your detailed instructions; reviewing the documents; advising on the merits of your case (or of any case against the employer where we act for the employee); and the compensation that an employment tribunal is likely to award. Merits and compensation assessments are reviewed as the case develops. For example, if an employee, in seeking to mitigate his or her losses, finds new employment that produces a significant income, the compensation assessment would be reviewed to reduce the losses and value of a claim.
  2. Conducting initial correspondence with other parties, as well as entering into pre-claim conciliation (known as early conciliation) where this is considered appropriate to explore whether a settlement can be reached.
  3. Preparing a claim or response to a claim.
  4. Reviewing and advising on a claim and any responses received from other parties.
  5. Where appropriate, engaging in settlement negotiations and advising on the possibility of private mediation.
  6. Formulating a schedule of loss or counter-schedule of loss.
  7. Preparing for and attending any preliminary hearings, including private case management hearings where procedural directions for the conduct of the case are given by completing an agenda and list of issues.
  8. Compiling and reviewing the documentary evidence, exchanging lists of documents and examining the material produced by the other parties.
  9. Agreeing a joint bundle of documents for use at future hearings, whether related to liability or compensation.
  10. Drafting witness statements cross referenced to the documentation.
  11. Assessing the other parties’ witness statements and the effect these may have upon prospects or value.
  12. Devising a chronology and list of relevant individuals.
  13. Preparing and delivering a brief to Counsel.
  14. Liaising with Counsel in relation to witness statements and evidence.
  15. Attending the final hearing, and potentially also a hearing for the assessment of compensation.

 

Costs and Charges

Frank Ryan has successfully mediated many claims, resolving them through negotiation and agreement and. However, it is still possible that a matter may require at a final hearing. Normally, costs are not awarded to either party in employment tribunal proceedings, and therefore it is necessary for a careful assessment of the net returns a claimant may recover.

Subject to our standard terms and conditions of business, our legal fees are calculated by reference, among other things, to the total amount of time spent on a case. Charges are made for telephone calls, outgoing letters and emails, consideration of documentation addressing tactics and case planning, meetings and general preparation and pursuit of a claim.

Partners - £450 per hour.

Consultant - £450 per hour.

Assistant Solicitor - £275 per hour.

Trainee solicitors - £205-245 per hour.

The above legal fee charges will be subject to VAT at the current rate of 20% (where applicable) and also subject to modification on 1st April annually.

We will be able to provide an estimate of overall costs once we have received sufficient information. The amount of work involved in each case will depend on the facts and issues, as well as the level of support required by the client and the agreed strategy.

Where there are related civil proceedings, we would need to provide a separate quotation for this work since it would not be covered as part of the pricing estimate for our fees discussed above. An example where this could arise is if there is a petition alleging shareholder prejudice. The quotation would be given at the time so you are aware of all the relevant costs for the related matters. Illustrative Range of Fees

As a general guide, the overall costs of bringing or defending claims for wrongful or unfair dismissal (excluding the fees for barristers and any expert witnesses) are:

• A standard case of medium complexity £50,000 to £100,000 plus VAT.

• A complex case £100,000 to £150,000 plus VAT.

The overall costs of a case may be higher or lower than the above figures depending on a variety of factors, such as:

  1. The volume and complexity of the documentation to be considered.
  2. The intricacy of the history of the case.
  3. The number of witnesses to be called and whether they are legally represented.
  4. The client’s personal requirements or circumstances, for example, ill health.
  5. The level of opposition encountered and whether they are legally represented.
  6. The requirement for preliminary hearings.
  7. The length of hearing required.
  8. The seniority of the barrister chosen to present the case.

Cases can be further complicated in situations where:

  1. It is necessary to make or defend a variety of applications, for example, to gain access to documentary evidence;
  2. There are complex discrimination or whistle-blowing arguments;
  3. Proceedings are required in a different court or jurisdiction.

Disbursement and Barristers’ Fees

Disbursements are costs related to your matter that are payable to third parties. We handle the payment of the disbursements on your behalf to ensure a smoother process.

Employment tribunals do not currently have fees, although there are court fees if action has to be brought in the civil courts as well.

Barristers’ fees depend on the level of experience (or “call”) of the barrister appointed. We will seek to agree fees with you and the barrister’s clerk before they are incurred. However, please note that third party expenses (barristers’ fees and experts’ fees for independent medical evidence or material related to employment prospects or to engage in private or judicial mediation) must be covered by the client in advance of liability for the fees being incurred.

A junior barrister of between two and ten years’ call appearing at a preliminary hearing of up to two hours could charge fees in the range of £750 to £2,000 plus VAT.

A final hearing may take between three and ten days depending on the complexity of the issues and number of witnesses called. A senior barrister of 15 years’ call (a “senior junior”) at a three day final hearing could charge a brief fee for trial preparation and day one of the trial of £7,500 - £10,000, with additional refresher fees for days two and three of the trial of £2,500 to £3,000, again plus VAT. A senior barrister of 15 years’ call at a ten day final hearing could charge a brief fee for trial preparation and day one of the trial of £25,000 to £30,000, with additional refresher fees of £2,500 to £3,000 for subsequent days, again plus VAT.

Engaging a more junior counsel for a three day final hearing might charge a brief fee of £3,500 to £6,000 with additional refresher fees of £1,000 to £2,000 for subsequent days, again plus VAT. More junior counsel engaged for a ten day final hearing might charge a brief fee of £10,000 to £20,000, with additional refresher fees of £1,000 to £2,000 plus VAT for subsequent days.

If the instruction of an expert is required to provide evidence in any particular field(s), a fee would be payable for their time. Experts’ fees largely depend on the nature of their instruction and the facts of the case, it is therefore difficult to estimate these at the outset.

If it appears that mediation or adjudication may assist in resolving your matter, and both parties agree, a fee would be payable for the mediator’s / adjudicator’s time. These fees are normally split between both parties and are usually in the region of £1,000 - £1,500 plus VAT for half a day, and £2,000 - £3,500 plus VAT for a full day, however, they can be higher. You must also bear in mind that it is sometimes possible that a barrister may need to attend a mediation /adjudication in particularly complex cases or where your opponents are insisting on Counsel attending (although we frequently attend mediations without Counsel). Their fees could range from £1,000 up to £7,500 plus VAT, depending on their level of call.

VAT if applicable would be charged at the current rate of 20%.

In appropriate cases, and only when acting for a claimant, we may be prepared to consider acting on a Damages Based Agreement, details of which can be supplied by us in cases that we consider appropriate.

The Timescale of the Process

The length of time required to complete an employment claim depends on whether the matter is resolved by agreement or if it proceeds to a hearing. Negotiations for settlement can take place at any time and we advocate the use of private mediation in appropriate cases.

The time limit for bringing claims is normally three months from the date of the dismissal or other act that forms the basis of a claim, plus four to six weeks to allow for early conciliation. Early conciliation must be started within three months and involve any relevant potential respondent(s).

If a case is not settled through early conciliation or negotiation, the employment tribunal process is likely to take between 6 to 12 months to complete. This is only an estimate and we will of course be able to provide a more accurate timescale once the matter progresses and we have more information.

The timeframe in which your matter is concluded will also depend on the timeliness of responses from the employment tribunal, which can be affected by their capacity at any given time.

If proceedings are not necessary, many employment disputes can be resolved quickly, sometimes in a matter of a few weeks or a couple of months.




OUR Employment Law TEAM

Frank Ryan

Director - Head of Litigation Frank Ryan
“Frank Ryan is a lawyer who thinks out of the box and delivers results, time and again, often with devastating effect. I would always want him on and by my side.” 
Toni Hilton, Dean of the Glasgow School for Business and Society

Caroline Graham

Corporate Consultant Caroline Graham
“The advice and level of service it offers is unparalleled” 
Legal 500

Sanna Häkkinen

Graduate Trainee (Trainee Solicitor) Sanna Hkkinen
“The advice and level of service it offers is unparalleled” 
Legal 500

Is Vardags Right For You?

We offer a free consultation to qualifying individuals. Please call our confidential enquiry line on 020 7404 9390. Lines are staffed 24 hours.

When you contact us a member of our client relations team will take the full details of your situation, assess whether we can assist you, and if so, determine the best team for your case. 

Offices are open or we can handle consultations remotely
Or call us on 020 7404 9390 Phone lines are open 24 hours
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