Legal Expenses Insurance – funding an employment tribunal claim
As a firm we act on a number of insurance backed claims both for Respondents and Claimants.
For the purpose of this blog, I will focus attention on a potential Claimant looking to bring an employment tribunal claim.
One of the most daunting prospects a potential Claimant can be faced with is how to fund a claim and I have set them out below:
- Privately fund the claim. Employment tribunal costs can run into thousands of pounds. Costs are much harder to recover than they are in the civil courts as they don’t automatically follow the case.
- Enter into a ‘Damages Based Agreement’ (commonly referred to as ‘No win-no fee’ agreement). A damages-based agreement will require a Claimant to give up 35% of any total award that they might win under a ‘no-win, no fee’ arrangement. Further this arrangement typically only extends to the cost of the Solicitor’s advice. The Claimant may be liable to privately pay for the costs of a barrister to represent them at tribunal hearings.
- A Claimant can be a litigant in person. The tribunal is set up for the ‘man in the street’ to be able to bring a claim however the process is quite complex. Navigating the intricacies of the law can be particularly daunting so this deters many potential claimants. There is no cost to lodge a claim at the Tribunal and can be done easily online once the potential Claimant has gone through ACAS early conciliation and secured their certificate.
- Legal expenses insurance. As set out above we act for many individuals through their legal expenses’ insurance cover. Typically, insurers will direct potential Claimant’s to their panel solicitors, however the individual has freedom of choice to instruct a solicitor of their choice. Typical levels of indemnity are £50,000 or £100,000 of legal funding which will easily cover straightforward unfair dismissal or discrimination claims. Subject to a Claimant’s claim having prospects of 51% or better, determined at the outset of the matter by a barrister the funding will cover the Claimant’s costs subject to the indemnity limits set out above.
Legal expenses insurance
I have found over the years that clients who come to us have many difficulties in respect of legal expenses insurance and find this option and their cover particularly, to be confusing. One of the issues that further complicates matters can be timing as the insurance companies require a lot of upfront paperwork to be completed before the Claimant is put ‘on risk’. With tight tribunal deadlines of three months less one day from a dismissal or the last act complained of we often pick up cases where claims need to be lodged and cover has not yet been confirmed.
A common example is when an individual has union representation, but the union after taking time to review the claim ultimately declines to represent the individual. This can then leave the potential Claimant feeling under pressure and scrambling around to look at alternative funding options against looming tribunal deadlines.
I would strongly advise any individual considering bringing a claim against their current or former employer to explore the possibility of claiming under their legal expenses insurance policy as soon as possible.
- Please note – this guidance is not intended to be taken as legal advice – for individual situations you will need to take specific legal advice.
- The information in this guide is correct as of February 2022.
- All information provided should be read alongside the relevant Government Guidance at https://www.gov.uk.
Director, Employment Solicitor and Mediator