Understanding Solicitors for Employment Law
The delineation of roles between different practitioners in the field of Employment Law can be rather confusing. Employment law solicitors do not just settle claims with their clients on the basis of what they think a Tribunal is most likely to decide or what they think the most pressing issue for the employee is or what they think an employer might agree to pay.
Employment law solicitors will respond to the client’s instructions by giving initial legal advice on the employment law involved. They will be able to explain the Employment Tribunal process, the termination processes and the legalities. They may also be able to tell you what has happened to similar claims in the past. An Employment law solicitor will always give you a realistic idea of your strengths and weaknesses, what a reasonable settlement might be and the potential costs involved. More importantly they will usually set out the potential costs of litigation and give a realistic idea of the chances of success . They are also obliged to tell you what might happen at trial and what would happen if you lost.
A good Employment law solicitor will not settle a case quickly just to earn more money. He will not be more interested in how much money you have than how strong your case is. Most importantly he will not do anything you do not want him to do and he will not advise you to do your own trading in the shares of your employer hoping that there is no connection between his advice and the misconduct you might then be accused of.
Having said all this Employment law solicitors are not completely altruistic. Most are not trade union officials living on benefit and there is a cost for their services. Clients typically pay £300 – £400 per hour to their solicitor. This is not cheap money however and a good Employment law solicitor is worth their fees. However as mentioned above Employment law solicitors are not necessarily the same as other types of Civil solicitors.
When to Seek the Help of an Employment Solicitor
There are numerous circumstances in which an employee should engage the expertise of an employment law solicitor, chief among them is a potential claim for unfair dismissal. Section 94(1) of the Employment Rights Act 1996 states that an employee has the right not to be unfairly dismissed by her employer. There are many other statutory rights which an employment law solicitor should advise you on; such as discrimination, breach of contract and unlawful deduction from wages.
It is also recommended that you seek the advice of an employment law solicitor when presented with a settlement agreement. Such an agreement will usually provide that you cannot bring a claim against your employer and that you must retain the services of a solicitor to review it. The employer’s money spent on their solicitor is therefore safeguarded, and the employee is given some comfort in knowing that their own solicitor has reviewed it.
Where redundancy is a possibility, an employment law solicitor can provide advice on the fairness of the consultation process and whether the employer has correctly applied its selection criteria. Failure to do this may give rise to a claim for unfair dismissal.
Wherever you terminate your contract of employment there are likely to be associated contractual issues such as claims for unpaid wages, notice pay and holiday pay which an employment law solicitor will be best placed to handle.
Choosing the Right Solicitor in Employee Matters
If you are an employee considering whether you might need to consult with, or retain, the services of an employment law Solicitor, the following criteria are what you should be viewing as important when deciding who to instruct:
Experience
What level of experience has your prospective Solicitor had in the area of concern? For example, someone who does not usually litigate cannot do so merely by running to Court on a given matter.
Specialisation
The more specialised a Lawyer is, the more likely you are to achieve a better outcome. If your situation involves a niche area of employment law, does the Lawyer in question have experience or specialisation in that area?
Success Record
In relation to your particular problem, you should ascertain how successful the Lawyer has been in this area and whether this success rate is reasonable or abnormal. A reputable Lawyer will be wary of making specific guarantees.
References/Testimonial
Does your Lawyer have the accreditations such as Lexcel, the Legal 500 or the Chambers Directory which can separately rank him or her amongst their peers? If so, how does this reflect on the reputation of the firm that you are dealing with in general?
Cost
Is it commercially viable to deal with the issue at hand? Does your Lawyer practice under Legal Aid? Are instalment payments acceptable or is it ‘pay as you go’?
We would recommend that you seek a written costs estimate before incurring any further costs, with a view to understanding exactly what the costs are and where these arise from.
Know About Employee Rights and Protections
One of the fundamental rights of all employees is to receive fair compensation for their work performed. This is a requirement of both federal and state wage and hour laws. With respect to overtime pay, much turns on classification issues. For example, non-exempt employees must be paid 1.5 times their regular hourly rate for all hours worked in excess of 40 hours in a given week. On the flip side however, if an employee is not entitled to overtime pay, he or she can lose out on significant amounts of compensation if they frequently work in excess of 40 hours per week. Whether an employee is "exempt" from overtime pay or not depends on the details of his or her job duties and responsibilities. It does not matter what a company or employer calls you when it comes to some of these issues. Wage and hour exemptions were intended to apply to management and supervisory positions of companies. So, what happens if you are not in management but your company labels you as a "manager"? This does not automatically entitle the company to deny you overtime if you are not actually performing the types of job duties and responsibilities that are required for the exemption. You should always be cautious if your company is telling you that you are too high up in the company to get overtime pay. Given the significant legal consequences , generally, if the company is wrong, the company will be the one to pay the back wages and other penalties that could be owed to you.
Taking the above example further, there are well settled principles regarding the minimum compensation requirements for employees. For an employee to qualify for many of these overtime exemptions, he or she needs to be making at least $684 per week. If you make more than this, your pay will not make you exempt merely by being in excess of $684 per week. Rather, these employees must essentially be in management positions and be exercising independent discretion and judgment in their jobs. Again, being labelled a manager by the company does not make you exempt if you are not performing the job duties and responsibilities to meet those exemption requirements.
There are other federal and state laws that govern employees’ health and safety. Companies must provide a safe workplace for employees, implement safety equipment and protocols, and properly train employees on safety-related issues. If you are injured or get sick on the job, you likely have a workers’ compensation claim. Again, this is an area inundated with regulations, deadlines and various entitlements.
How to Prepare for a Meeting with a Solicitor
If you feel that you are likely to have a (potentially) strong legal case, the next step is to obtain a consultation with a solicitor. There are various considerations for you to take into account in arranging this. You need to strike the right balance between being prepared for the meeting and not "over-preparing" to the extent that you appear to the solicitor to have been "coached". The balance for you is to have a carefully thought through "outline" of what has happened so that you can clearly explain in simple terms to a solicitor what has occurred up to now. Do you therefore really need all of the documents that you receive and prepare for your employment case? Not for the first meeting with a solicitor. It is much better that you have an idea of the key papers and facts but that you are well prepared to explain those key facts to a solicitor.
So what should a person do to prepare for a meeting with a solicitor? With the issue having arisen within the workplace:
• Firstly try to identify briefly what has happened. What date did you start work? When did you get promoted or take on a more senior position and so on? Summarise the employment relationship in a few short paragraphs.
• You then need to be honest with yourself about what your grievance is. What happened to you to cause you distress and upset? Over four or five short paragraphs say how the employer’s actions have affected you.
• Be clear about what was said by whom and why you believe that the action taken was inappropriate in the context of your role.
• If you want to make a claim against your employer you will have to calculate how much money the employment tribunal would award you if you win the case. There is no Royal Commission on calculating this and it is very much a matter of judgment as to how much you are owed up to the date of separation. If you estimate too high, your claim will be dismissed. If you estimate too low, you may end up under-settling the matter. All that you can do is to try to estimate as fairly as possible.
• Applications for injunctive relief and the like can also be estimated to a degree.
• You cannot litigate over every grievance. Try to keep it simple and deal with the issue(s) that it is appropriate to deal with and try to leave out the peripheral issues. It is very tempting to try to deal with every grievance and tell the solicitor everything little thing that has gone wrong, but this is not helpful.
• Make sure that you have any samples of documents/papers to hand.
• You should also be clear prior to the meeting with the solicitor about what you want to ask the solicitor. This will then make that meeting productive.
The Part Solicitors Play at an Employment Tribunal
The experience of presenting a case in the tribunal is traumatic for the individual concerned. Fear of the unknown and of giving evidence in public loom large in people’s minds. The knowledge that one’s future could be affected by what a panel of three laymen think about your case is also terrifying. While the EAT (Employment Appeal Tribunal) has power to hear appeals in certain situations, decisions are made by a judge sitting alone and with access to the papers in the case and having the benefit of an advocate who understands the law (although even barristers can and do lose cases before judges’ on occasions).
It is important for the employee’s representative, solicitor or barrister, to follow the correct procedure. Failure to comply with the tribunal timetable is sometimes grounds for striking out a case. This may mean the individual is left without a hearing at all. The timeline starts from the initial meeting with a solicitor or adviser. The employee should be given a merit test, and an explanation of the law and the process they will go through should the case be accepted. All the relevant documents are then collected and a statement made of what happened as a matter of fact. The claim is issued to the tribunal office. The tribunal does not embark on a case management process unless the case is transferred to its list for a pre-hearing review. The employee must be prepared to consider an early settlement that some employers will want to negotiate . This will normally involve the offer of a sum of money. In most cases, expert legal advice is needed to decide whether this is a good deal. Litigation is an uncertain process, which can drag on for years in the worst circumstances. Your solicitor will know which way the case is likely to go if taken to a hearing and will have a collection of other similar cases that they can compare with yours to calculate the possibilities for "settling" before a hearing takes place. You should not be encouraged to settle if you are right, but at the same time your expectation of winning should be honestly reported back to you. An interim hearing may be required if a claim is for unfair dismissal and the employee’s employer seeks to force him or her into a return to work before the tribunal hearing, or if there is a dispute about the employee’s previous pay or hours. There are examples of claims where offers are made and accepted by the employee without proper legal representation, leaving the employee far worse off, sometimes financially but not necessarily emotionally. In respect of contract claims in particular, advice should be sought as the case may turn on minute details. Given that the parties in the tribunal hearing do not have the benefit of support from legal advisors, it is important for the employee to take along someone with them who can provide such support.