"No win, no fee" for employers: when it exists and what to do instead

No win no fee - what employers need to know

Employers regularly ask whether "no win no fee" is available to defend a Personal Grievance (PG) or an Employment Relations Authority (ERA) claim. In almost all situations, it is not. Employers usually have to pay for representation as the case progresses.

Why no win no fee rarely works for employers

There are a lot of employers who think that "No Win, No Fee" is available where they are being sued by an employee. It is generally not possible for an employer to enter into that arrangement for defending a personal grievance claim. The employer will usually have to pay its own lawyers or advocates as the case progresses.

Fee models that do work for employers

• Fixed scope: a defined piece of work (initial case assessment, response letter, mediation prep, attendance at mediation).
• Staged pricing: one fee for early resolution work, then a separate fee if the matter proceeds to the ERA and beyond.
• Hourly with guardrails: hourly work but with clear milestones, budgets, and decision points.

Employer strategy that saves money

• Get the facts and documents organised early: employment agreement, warnings, meeting notes, letters, rosters, timesheets, payroll records, performance records.
• Fix process problems early: many employer losses are process losses, not "facts" losses.
• Use mediation properly: a well-prepared mediation can resolve matters without the cost of an ERA investigation meeting.
• Be realistic about costs threats: employees are often threatened with huge "lawyer costs" that do not reflect actual ERA costs principles.