What to do Next
- Can my employer request me to go into work?
For businesses that are permitted to stay open: whilst the government encourages home working where possible, there is no obligation upon the employer to allow home working. In many cases, a business will not be able to continue running on a work from home basis. This means the employer is still allowed to ask for their employees to come into work.
- I can work from home, but my employer is making me come in. What can I do?
The guidelines state that if you can work from home, you should. You should discuss this with your employer. If they still insist that you go to work, then you will have to ensure that you are safe in the workplace. If you do not think that the workplace is safe, see the next question.
- I have to go into work. The social-distancing measures aren’t working, or aren’t there and I don’t feel safe. What can I do?
The first thing to do would be to talk to the health and safety officer. Depending on their response, you can raise a grievance that you do not believe you are safe in the workplace. This is a more formal way of raising an issue. ACAS has guidelines that you can follow on how to do this, here: https://www.acas.org.uk/grievance-procedure-step-by-step/step-2-raising-a-formal-grievance
You should always raise a written grievance in the first instance. ACAS has produced a code of practice that provides minimum standards employers should follow: https://www.acas.org.uk/acas-code-of-practice-for-disciplinary-and-grievance-procedures/html#the-code-of-practice
If nothing is done and the workplace remains unsafe, then you should seek immediate legal advice. You may have grounds to refuse to go to work until steps are taken to remove the danger.
If an employee is dismissed for refusing to attend an unsafe workplace (or an employer refuses to ensure the workplace is safe) you may have a legal claim.
We would recommend seeking legal advice before taking any action in response to an employer’s failure to provide a safe workplace as the area of law can be complex. We can help in writing letters to your employer, raising a grievance and assisting you with a potential claim. Please refer to our website for full details of the services we can offer.
- I do not feel comfortable going into work. I am not vulnerable myself. My employer is insisting that I return. What can I do?
There are options available to support employees who do not feel comfortable going into work. The government has introduced the Coronavirus Job Retention Scheme for employers, who are eligible, to furlough staff. See our furlough section for more information on what this involves.
If you make a request to be furloughed, employers have discretion on whether to furlough or not. If your employer refuses your furlough request because they need you in work, then you will be expected to go into work. A failure to go into work can result in disciplinary action being taken against you.
If you are dismissed as a result, it is possible that you could have a claim for automatic unfair dismissal on health and safety grounds if you can show that the workplace was unsafe and it was unreasonable for you to return. There are a range of factors to consider and we advise for you to seek advice before refusing a request to return to work. We can help in writing letters to your employer to request furlough and advise you on your options if this continues to be refused.
- My work has asked me to return, but I use public transport to get to work and do not believe it is safe to travel.
The guidelines recommend that people wear face masks on public transport, but this means there is still a risk to your safety. Where the travel is for the purpose of coming to your workplace, you are able to discuss this with your health and safety officer and potentially raise a grievance on health and safety grounds. This is a more formal way of raising an issue. ACAS has guidelines that you can follow on how to do this, here: https://www.acas.org.uk/grievance-procedure-step-by-step/step-2-raising-a-formal-grievance
You should always raise a written grievance in the first instance. ACAS has produced a code of practice that provides minimum standards an employer should follow: https://www.acas.org.uk/acas-code-of-practice-for-disciplinary-and-grievance-procedures/html#the-code-of-practice
If no alternative travel arrangements can be made, there may be a possible claim of ‘automatic constructive unfair dismissal’ on health and safety grounds on the basis that you feel forced to leave your employment due to the risk of serious or imminent danger. This is a difficult claim to make and a number of factors have to be considered before taking such a big step. If you are contemplating resigning due to health and safety worries, you must seek legal advice first. We would recommend seeking legal advice when the issue first arises. This can be a complicated and stressful situation and Derbyshire Law Centre is able to advise at every step. We can help in writing letters to your employer, raising a grievance and assisting you with a potential claim.
- What is furlough? What happens if I am furloughed?
Furlough is where an employee or worker agrees with their employer to stop work temporarily but stay employed. The Coronavirus Job Retention Scheme was set up to help businesses stay afloat and support employees who might otherwise have been dismissed by allowing them to be furloughed under the scheme.
While ‘on furlough’, employees are not allowed to work for their employer or for any linked or associated organisation. They cannot make money or generate revenue for the latter either. Employers are responsible for submitting the claim for the employee and HMRC will pay the employer 80% of the employee’s wage, up to a cap of £2,500 (gross) per worker per month. The employer should then pay the 80% wage to the employee.
See more here: https://www.acas.org.uk/coronavirus/furlough-closing-workplaces
- Is the scheme only if redundancy was the alternative?
The scheme is said to apply to ‘employees who are furloughed by reason of circumstances arising as a result of coronavirus or coronavirus disease’. It is designed to support both employers and employees where an employer cannot provide work and home working is not an option.
The basic requirements are that:
- You are on the PAYE payroll on or before 19 March 2020 (must have made an RTI submission to HMRC on or before this date)
- Enrolled for PAYE online
- With UK Bank account
- On any type of contract
There is an extensive list of all the employees who could be eligible under the scheme, which you can view here:
- How do I become furloughed?
Your employer should write to you to state that you are to be furloughed. A popular method has been by way of an email. You will then need to signify your agreement to be furloughed.
- Does my employer have to furlough me? Can I make my employer furlough me?
Employers have total discretion in regard to furloughing employees providing any decisions made are non-discriminatory. As an employee, you have options in terms of requesting to be furloughed, though an employer may be able to refuse this. If you are refused to be furloughed on discriminatory grounds (for instance, if you are a woman with childcaring responsibilities), you may have been discriminated against. Please contact us for further advice.
- Is there a procedure that my employer has to follow when deciding who to furlough?
A procedure has not been provided by the Government, so it is at the employer’s discretion. It is advisable for employers to select workers who cannot work from home and who currently have no work to do. However, employers will need to be cautious so as not to be seen as discriminating against employees. As with redundancy, employers may need to consider requesting volunteers to furlough, considering who is at risk and then following a fair selection process.
If you feel that you have been discriminated against, please contact us.
- How long can I be put on furlough for?
Any employee can be on furlough for a minimum of three consecutive weeks. Employees can be furloughed multiple times, but each period has to be for the three consecutive weeks. The scheme is temporarily running until the end of June 2020, but this is under review and could be extended
- I have agreed to be furloughed but I have not had any money come through. My employer has been paid but is not giving it to me. What can I do?
You could have a potential claim for unlawful deduction of wages. We would advise contacting the Law Centre for further advice.
- Can I be put on furlough for three weeks and then someone else put on furlough for another three weeks?
Yes, an employer is allowed to rotate employees on furlough. This is subject to the minimum three consecutive week period.
- Who is entitled to Statutory Sick Pay (SSP)?
- People who have coronavirus
- People who are isolating due to displaying symptoms of coronavirus
- People isolating due to someone in their household having symptoms
- People who have been told to isolate by a doctor or NHS 111
- Those who have been told to follow shielding measures (you might have received a letter or text telling you to do this)
See more here: https://www.acas.org.uk/coronavirus/self-isolation-and-sick-pay
- If you have been advised to shield yourself for 12 weeks are you entitled to SSP?
- If you are unable to work from home during this time, you may also be eligible to be furloughed. You can ask your employer about this.
See more here: https://www.acas.org.uk/coronavirus/vulnerable-people-and-high-risk
- What should I do if I do not meet the SSP requirements but my employer has put me on SSP and I am pregnant?
Pregnant women have extra protection under health and safety laws. If you are pregnant and have notified your employer about this, you are entitled to a risk assessment. If your employer can’t provide a safe workplace, in particular the 2 metre social distancing rules, then you are entitled to be suspended on full pay.
An employer’s failure to provide normal wages during a period of suspension on health and safety grounds could be an unlawful deduction of wages and/or pregnancy discrimination. We would recommend seeking legal advice as soon as possible if you are being told to go into work and you are pregnant.
Read more: https://maternityaction.org.uk/2020/04/new-legal-advice-on-pregnant-womens-rights-during-the-covid-19-pandemic/
LiP Service: Help for Litigants in Person
These pages on our website help people taking claims to the Employment Tribunal without professional advice or representation. Click HERE to access this information.
Is there a charge?
- We are the only legal charity that provides free specialist employment advice in Derbyshire, but our funding for free advice is restricted. If we are not able to help you free of charge we can often assist on a charged basis.
- Free telephone advice on our helpline.
- When we advise you on our helpline, if we consider it beneficial, and depending upon the circumstances of your case, we may offer you a follow-up meeting at which we can spend an hour discussing your case and following up with advice in writing.
- In some exceptional circumstances we can carry out up to 6 hours casework free of charge.
Our charges are low compared with conventional solicitors’ practices and we have a high level of expertise in employment law. We offer competitive, affordable rates to individuals. All our charges are based on an hourly rate of £105.00 PLUS VAT. Full details of our charges can be found below.
If you have legal expenses insurance, you may be able to nominate us as your legal representatives and we will be paid directly by the insurance company for any work carried out. Please contact us for further information if you wish to do this.
What to do Next
Contact us on 01246 550674 or on Freephone 0800 707 6990.
Our Charging Structure For Employment Cases
We are a registered charity and not for profit organisation and as such our fees are generally lower than the fees you would pay elsewhere. All our costs are based on an hourly rate of £105 + VAT (ie £126 including VAT).
Our pricing for bringing and defending claims for unfair or wrongful dismissal
Simple case: £2700 - £3500 (excluding VAT). This fee level would usually apply to a straightforward claim for wrongful dismissal (ie failure to pay notice pay).
Medium complexity case: £3500 - £5400 (excluding VAT). This fee level would usually apply to a straightforward claim for unfair dismissal, or a more complex claim for wrongful dismissal (eg including questions of dismissal procedure and more complex contractual obligations)
High complexity case: £5400 - £8700 (excluding VAT). This fee level would usually apply to a complex claim of unfair dismissal, or a high-value wrongful dismissal claim. It could be expected to include some of the factors listed below which make a claim more complex and therefore more time-consuming.
Factors that could make a case more complex:
- If it is necessary to make or defend applications to amend claims or to provide further information about an existing claim
- Making or defending a costs application
- Complex preliminary issues such as whether the claimant is disabled (if this is not agreed by the parties) or if there is uncertainty about employment status
- The number of witnesses and documents
- If it is an automatic unfair dismissal claim e.g. if you are dismissed after blowing the whistle on your employer
- Allegations of discrimination which are linked to the dismissal
There will be an additional charge for attending a Tribunal Hearing of £850 per day (excluding VAT). Generally, we would allow 1-8 days depending on the complexity of your case.
Disbursements are costs related to your matter that are payable to third parties, such as court fees. We handle the payment of the disbursements on your behalf to ensure a smoother process. To ask a Barrister for an initial opinion on the merits of a claim could cost £200 - £600 (excluding VAT), depending on the experience of the advocate and the complexity of the case. For instance, it will cost more if there are a lot of documents to read. If a Barrister represents you at a Tribunal Hearning, their fees are estimated at between £600 and £2000 (excluding VAT) per day (depending on experience of the advocate) for attending a Tribunal Hearing (including preparation).
Stages of a claim
The fees set out above cover all of the work in relation to the following key stages of a claim. The list below sets out the stages. The fixed fees listed are an alternative to paying us on the basis of an hourly rate. Further details of the arrangements for fixed fees are given below.
- Taking your initial instructions, reviewing the papers and advising you on merits and likely compensation (this is likely to be revisited throughout the matter and subject to change). Fixed fee: £210 to £525 (excluding VAT)
- Entering into pre-claim conciliation where this is mandatory to explore whether a settlement can be reached.
- Preparing claim. Fixed fee: £210 to £525 (excluding VAT). This is our fee for preparing a claim once instructions have been taken. If we have not already taken initial instructions, there will be an additional fee, as outlined above.
- Reviewing and advising on response from employer. Fixed fee: £105 to £315 (excluding VAT). Again, this fixed fee assumes initial instructions have been taken. If we have not already taken initial instructions, there will be an additional fee, as outlined above.
- Exploring settlement and negotiating settlement throughout the process
- Preparing a schedule of loss. Fixed fee: £75 to £315 (excluding VAT). If we have not already taken initial instructions, there will be an additional fee, as outlined above.
- Preparing for (and attending) a Preliminary Hearing. Fixed fee: £210 to £525 (excluding VAT), plus travel time if the hearing is ‘in person’. If we have not already taken initial instructions, there will be an additional fee, as outlined above.
- Exchanging documents with the other party and agreeing a bundle of documents. Fixed fee: £210 - £525 (excluding VAT). If we have not already taken initial instructions, there will be an additional fee, as outlined above.
- Taking witness statements, drafting statements and agreeing their content with witnesses. Fixed fee: £525 - £1575 (excluding VAT) depending on the number of witnesses and complexity of the case. If we have not already taken initial instructions, there will be an additional fee, as outlined above.
- Preparing a bundle of documents. Fixed fee: £315 - £630 (excluding VAT). If we have not already taken initial instructions, there will be an additional fee, as outlined above. If we have already exchanged documents with the other party, and agreed the bundle, this figure will be reduced to £210 - £525 (excluding VAT).
- Reviewing and advising on the other party's witness statements. Fixed fee: £210 to £630 (excluding VAT), depending on the number of witnesses and complexity of the case. Again, this fixed fee assumes initial instructions have been taken. If we have not already taken initial instructions, there will be an additional fee, as outlined above.
- Agreeing a list of issues, a chronology and/or cast list. This is only necessary in more complex cases. Fixed fee: £315 - £630. If we have not already taken initial instructions, there will be an additional fee, as outlined above.
- Preparation and attendance at Final Hearing, including instructions to Counsel if you are represented by a Barrister at the Final Hearing. Fixed fee: £525 - £1260 (excluding VAT) for preparation plus £850 per day attendance at the Employment Tribunal if we represent you at the Final Hearing.
The stages set out above are an indication and if some of stages above are not required, the fee will be reduced. You may wish to handle the claim yourself and only have our advice in relation to some of the stages. This can also be arranged according to your individual needs.
We can offer a fixed fee for some stages of work, as shown above. The level of fee will depend upon the complexity of your case. Where fixed fees are available, the illustrations above give an indication of likely costs, the lower amount being the fixed fee for a straightforward wrongful dismissal claim, and the upper amount being the fee for the most complex kind of unfair dismissal case, as outlined above. An average, medium complexity case would attract a fixed fee half way between the 2 figures. As every case is different, and in order to tailor our service to your requirements, we will always quote you a precise figure if you ask us to undertake work for a fixed fee, and will not start work until you have agreed the figure.
Very occasionally we may be able to offer a damages-based agreement. As the name suggests, this is where you agree to pay us a percentage of any sum paid to you as a result of settling or winning your case. The amount paid to us will not exceed 25% plus VAT (30% including VAT), plus any disbursements incurred during your case.
Legal Expenses Insurance
If you have legal expenses insurance, you may be able to nominate us as your legal representatives and we will be paid directly by the insurance company for any carried out. Please contact us for further information if you wish to do this.
How long will my matter take?
The time that it takes from taking your initial instructions to the final resolution of your matter depends largely on the stage at which your case is resolved. If a settlement is reached during pre-claim conciliation, your case is likely to take 3-6 weeks. If your claim proceeds to a Final Hearing, your case is likely to take 9-12 months. This is just an estimate and we will of course be able to give you a more accurate timescale once we have more information and as the matter progresses.
Who will work on my case?
We currently have two experienced caseworkers in the employment team. Andrew Montgomery is a legal executive, and has 17 years’ experience of employment casework. Ellen Taylor has 15 years’ experience of taking employment cases. Each caseworker supervises the other on a day to day basis, with overall supervision from Tony McIlveen, our senior solicitor. From time to time, a trainee solicitor or paralegal may work on your case. They will have been fully trained to undertake this work, and will be supervised by members of the team.