We are not trying to put you off, but we would not be helping you very much if we didn’t help you think through whether it will really be worth it for you.
This is part a series of guides
We have written them because we understand how being treated unfairly at work can impact your whole life, even how you see yourself. We want to support you to work out if you can or should take your case to the employment tribunal, and to help you to do it well - even if you cannot find an adviser to help you, and cannot afford to pay for help. We suggest you read all of the guides in the series.
To decide whether you really want to take a case to an employment tribunal you need to think about
We look into all of these things in a bit more depth below.
This guide covers the law and process in England and Wales. The process is slightly different in both Scotland and Northern Ireland. Find out more about the process in Scotland from Citizens Advice. Find out more about the process in Northern Ireland on Industrial Tribunals and the Fair Employment Tribunal. (This information about Northern Irish process is very brief so read these guides for more help on how to do things like value a claim, negotiate, write a statement etc). |
September 2024
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Lawyers call working this out ‘valuing your claim’. It is important to be realistic. Sometimes you might read about people winning very high sums (usually in discrimination cases), but the reason these stories were in the news is often because they were unusual and may be very different from your case.
See the information in the guide called ‘How to value your claim for employment tribunal’ to work out how much you could ask the tribunal to award you.
Be aware that for more complicated claims like discrimination claims you are unlikely to get everything you ask for.
Ask yourself if that amount of money will be worth all the time and stress of taking the case.
Unfortunately, every year lots of people win an employment tribunal but they never get the compensation awarded, or not all of it. If your employer is in financial difficulty or if they have stopped trading they are unlikely to pay you.
If you work for a big organisation you can be more confident that they will pay you if you win. Smaller companies are less likely to pay you. Some may declare themselves insolvent or bankrupt to avoid debts like this, and then just start trading again under a different name.
You can check if your employer has had any other cases brought against them and if they had to pay compensation on GOV.UK.
You can check the register on Companies House to see if they are insolvent (cannot pay their debts) or have a history of winding up and restarting under a new name.
If your employer was a limited company (which will usually have ‘Ltd’ as part of the company name) and have stopped trading, they might not have any money or assets to pay you with. Directors of ‘limited’ companies do not usually have to use their own money to pay the company’s debts. However, if you win a discrimination or whistleblowing claim against them as an individual, they might have to.
If your employer was a sole trader who has stopped trading and no longer has any business assets, you may be able to go to court to get a judgment to make them sell their personal assets to pay you. Be aware this would mean winning a case at tribunal and then taking another case to court. See our series that shows you how to take someone to court.
If your employer is bankrupt or in administration or liquidation (all of which mean they cannot pay the people they owe money to), you might be able to get the money from the National Insurance Fund if you win your case. The National Insurance Fund can only pay people who were employees and either UK or EEA nationals, and with certain claims, like unpaid wages or redundancy pay. Check if you would be able to claim if you won on GOV.UK. If you wouldn’t be able to make a claim to the National Insurance Fund, it is not usually worth taking a case.
This can be hard to assess without the help of an adviser or lawyer. Do get advice if you can.
Your chances of success will depend on whether you have enough evidence to prove your case and what evidence your employer has to disprove it.
It doesn’t cost anything to start a case. If you do not get a paid-for solicitor or barrister to help with your case, you will probably only have to pay for the expenses of your witnesses, the costs of attending a hearing (including your lost wages), and any printing costs. Having said that, of course having a solicitor or barrister with employment expertise to help you should increase your chance of success.
You do need to be aware that if the tribunal thinks you have acted unreasonably in continuing the claim or the way you managed the things you need to do, they may ask you to pay your employer’s legal costs (the amounts they have paid their solicitor or barrister) – which could be a lot of money. Don’t let this worry you too much though. The tribunal are only likely to do this if they believe you have lied about an essential part of your claim, you were abusing the system, if your case never had a chance of success, if you didn’t follow the court instructions, or didn’t come to the hearing. It is rare that this happens.
Do not start a case if you will need to lie or exaggerate or keep back evidence that will help the other side in order to win - or if an adviser or solicitor has told you that you don’t have a good chance of success. Be honest, follow the tribunal’s instructions, and attend the hearing - then this will not happen to you.
(If you have misjudged your likelihood of success so badly that the judge might consider ordering you to pay the other side’s costs, you can explain to the judge that you made this mistake by accident).
Similarly, if your employer does not behave reasonably or do the things they are supposed to do to prepare for the hearing, you can ask that they pay you for your preparation costs. See our advice on employment tribunal preparation for more details.
It sounds obvious, but think about if there is another way to get what you want. If you haven’t used your employer’s grievance process yet, do that. You usually should have explored this option before starting a case – see Before you can start a case at employment tribunal. If you haven’t followed the grievance procedure before taking a case to an employment tribunal, your compensation can be reduced by up to 25%.
You should be willing to try early conciliation (see Tell Acas) or see if your employer would be willing to use another dispute resolution process (that they should pay for). It is worth noting that a tribunal can’t order anyone to or order that policies are changed so that nobody experiences it in the future, but that might be quite important to you. Both of these can be agreed in conciliation or another form of dispute resolution, like mediation.
Of course, we believe in standing up for yourself when your rights are not respected. But it would not be very helpful of us if we were not clear that there is a lot of work involved in taking a claim to employment tribunal, particularly if you don’t have a lawyer or adviser to help you.
It will be time consuming and stressful – and stress can have all sorts of knock-on effects on your health and relationships.
If you have been upset by the treatment you received, don’t underestimate the impact of thinking about it again and again and confronting the people who upset you might have on your mental health.
It is important to understand it is unlikely to be over quickly – depending on the complexity of your case and where you are in the country, you could be waiting for anything between 6 months to 2 years for a hearing. That is a long time to have a case hanging over you.
However, it is worth remembering you can always withdraw a claim or part of a claim if it gets too much for you (though if you leave this very late you increase the chance your employer could ask the judge that you pay their costs). You may also be able to resolve the case through either early conciliation, conciliation once the case has begun, or judicial mediation – all of which are free. See our advice on negotiating a settlement agreement with your employer.
Bear in mind that your employer or any other respondents are only likely to be willing to negotiate a settlement if they believe you will take the case to tribunal. Be aware also that lots of employers are only willing to negotiate once a tribunal claim has been started.
If you do agree to settle, make sure the agreement is written up properly so that you can take legal action if your employer does not pay as agreed. The tribunal, an Acas officer, or your employer’s lawyer can write the agreement up for you. See our advice on what should be in the agreement. See our advice on making a written agreement with your employer.
The information in this guide applies to England and Wales.
The law is complicated. We recommend you try to get advice from the sources we have suggested.
The cases we refer to are not always real but show a typical situation. We have included them to help you think about how to deal with your own situation.
Advicenow is grateful to the Ministry of Justice for funding the creation of this guide under the Online Support and Advice Grant.
Advicenow would like to thank everyone who provided advice and feedback on this guide, particularly Chris Lake, Rebecca Thomas of 42BR Barristers, and editorial teams at Thomson Reuters who kindly peer reviewed it.
Please tell us about your problem. Knowing more about our users and what you found useful helps us get funding to keep our website going. We also want to hear if there is anything you didn’t like or couldn’t find so that we can be even more useful. It is OK to skip questions – but please press ‘submit’ at the end as otherwise we don’t get your response.
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