In most circumstances it will not be possible to have concurrent proceedings in both the Employment Tribunal and civil courts, such as the High Court, and therefore legal advice should be sought before commencing a claim so that consideration can be given at an early stage as to which court would be most appropriate. This can frequently save costs and ensure that a robust strategy is followed from the outset. We are experienced at bringing claims in both the Employment Tribunal and High Court and we can use our depth of experience to identify the best approach for you.
A key benefit in bringing claims in the Employment Tribunal is that generally they can be dealt with efficiently and with relative flexibility. As there is no automatic presumption that the losing party will pay the winning party’s costs it is also relatively risk free for claimants to bring claims as, unless they act in such a way that would result attract a costs order, there will be low risk in having to pay the other side’s costs.
There are, however, certain claims which would be preferable to commence in the High Court. When considering the best forum (Employment Tribunal or civil courts) in which to bring an employment claim key factors will be the type of claim being brought and the level of compensation the claimant is seeking:
- The High Court does not have a cap for the level of damages for breach of contract which it can award, however, in the Employment Tribunal the limit for damages that can be awarded for a breach of contract claim in the Employment Tribunal is £25,000. This is usually an important consideration for high earning employees who are seeking to recover salary and benefits such as bonus payments which may exceed the cap.
- The limitation period for bringing a claim in the Employment Tribunal is generally three months (plus an extension granted by ACAS Early Conciliation which is relatively short, and requiring claimants to act quickly in bringing a claim. In the High Court the limitation period is six years giving claimants more time to obtain legal advice and consider the action they wish to take.
- The High Court has the ability to order a wider range of remedies than the Employment Tribunal. For example as well as being able to award damages the High Court can grant injunctions. Where an employee breaches a post termination restrictive covenant or where they take confidential business information when they leave the employer may want to seek an injunction against the employee to enforce the restrictive covenant or to prevent the use of and return of confidential information.
Often the potential for increased financial compensation or injunctive measures will outweigh the drawbacks in bringing a High Court claim. When bringing High Court claims the parties must comply with the Civil Procedure Rules (“CPR”) which are generally more stringent than the Employment Tribunal Rules. There is also the principle that the losing party pays the winning party’s costs therefore claimants should always ensure they have sufficient funding in place to cover any adverse costs orders.