Understanding the Schedule of Loss for the ET

Schedule of Loss

This is a formal document, typically prepared on behalf of a claimant in employment tribunal proceedings, that comprehensively details the financial and non-financial losses incurred as a result of a respondent's conduct. It covers losses sustained up to the date of the tribunal hearing and also anticipates future losses.

Purpose and Role in Tribunal Proceedings

Case Management

A Schedule of Loss is usually considered by an employment judge at a case management preliminary hearing. This is a crucial step in preparing the case for a final hearing.. The tribunal will also consider a counter-schedule submitted by the respondent.

Quantifying the Claim

It sets out the approximate value of each aspect of the claim and the extent of any ongoing financial loss, providing the tribunal with a clear financial picture of the remedy sought.

Facilitating Settlement

Producing this schedule at an early stage is encouraged by Presidential guidance as it aids settlement negotiations and discussions around mediation, giving the respondent an early understanding of the claim's size and increasing the chance of realistic negotiations.

Transparency and Support

The schedule should briefly explain the basis for each amount claimed and include any supporting documentary evidence that has not already been served. For claimants, it should also include details on whether new employment has been obtained or is imminent, and a summary of any job search undertaken.

Typical Contents of a Schedule of Loss (for discrimination and unfair dismissal claims): The overarching aim of compensation, and thus the Schedule of Loss, is to place the claimant in the position they would have been in had the discriminatory or unfair act not occurred.

1. Key Information

   • Gross and net weekly pay, pension contributions, and annual value of other employment benefits.

   • Contractual notice period, claimant's date of birth, age at the effective date of termination (EDT), period of service, and total continuous service.

   • Details of any jobseeker's allowance or income support received.

   • Information on mitigation efforts, such as the date mitigation commenced and any net weekly pay from new employment.

2. Basic Award (Unfair Dismissal)

   • Calculated based on factors like the claimant's age, length of service (up to 20 years), and a week's pay (subject to a statutory maximum).

   • Any statutory redundancy payment already received by the claimant is offset against this award.

3. Financial Loss (Pecuniary Loss)

   • Loss of earnings

     Itemised for the period up to the final hearing date and for anticipated future loss.

   • Pension loss

     Represents the value of contributions the employer would have made.

   • Loss of other benefits

     This includes both contractual and discretionary benefits.

   • Expenses

     Recoverable expenses incurred as a direct consequence of the discriminatory act.

   • Loss of statutory rights

     A nominal amount (e.g., £400-£500) may be awarded for the loss of accumulated statutory rights due to dismissal.

   • Deductions

     Reduced by state benefits received and various payments made by the employer, such as ex gratia payments, contractual payments (e.g., redundancy pay, pay in lieu of notice, sick pay), and payments from permanent health insurance.

   • Mitigation

     Reflects steps taken by the claimant to reduce their loss, typically by seeking new employment.

4. Non-Financial Loss

   • Injury to feelings

     Compensation for emotional distress is assessed using established guidelines known as the Vento bands. This award is compensatory, not punitive.

   • Personal injury

     Damages for physical or psychiatric injury, which must be supported by medical evidence and carefully assessed to avoid overlap with injury to feelings awards.

   • Aggravated damages

     Awarded in cases where the respondent's conduct was "high-handed, malicious, insulting or oppressive," compensating the claimant for additional injury caused by such actions.

   • Exemplary damages

     These are rare, punitive awards designed to punish the respondent in very limited, severe cases, such as oppressive or unconstitutional actions by government servants, or where profit was made exceeding the compensation.

5. Additional Matters and Adjustments

   • Uplift/Decrease for Code of Practice Failure

     Compensation can be increased or decreased by up to 25% if there has been an unreasonable failure to follow a relevant statutory code of practice (e.g., the Acas Code on Disciplinary and Grievance Procedures or the Code of Practice on Dismissal and Re-engagement).

   • Sexual Harassment Uplift

     For claims involving sexual harassment, an uplift of up to 25% on compensation may be applied if the tribunal finds the respondent failed in their duty to prevent sexual harassment.

   • Interest

     Tribunals have the power to award interest on the claimant's past losses in discrimination cases.

   • Taxation (Grossing Up)

     Some parts of the award may need to be "grossed up" to ensure the claimant receives appropriate compensation after any tax payments.

Strategic Considerations

• Claimant's Perspective

  While a claimant should aim to present their best case, it is important not to over-inflate the claim, as this can hinder negotiations or be viewed negatively by the tribunal. Tribunals are often hesitant to make large awards for future loss of earnings.

• Respondent's Perspective

  The Schedule of Loss informs the respondent of the financial exposure and is a valuable tool for preparing their defence regarding the amount of compensation claimed. If a claimant does not produce a schedule voluntarily, the respondent can apply to the tribunal for an order requiring them to do so.