A “Schedule of Loss” is imperative in the Employment Tribunal process; it not only provides the Employment Tribunal with guidance on the financial compensation that an employee is seeking to achieve through their claim, but can encourage parties to engage in realistic settlement discussions prior to a Final Hearing becoming necessary.
However, whilst “Schedule of Loss” is a term commonly referred to in Tribunal proceedings, employees are often uncertain as to what this document is, why it is important to provide such a document, and what it actually entails to draft the same.
What is a Schedule of Loss?
A Schedule of Loss is a document prepared by an employee (i.e. the Claimant) in an Employment Tribunal claim which essentially sets out the financial compensation they are seeking to obtain. This should include a breakdown of financial calculations that reflect the loss allegedly caused by their employer or ex-employer (i.e. the Respondent).
When is a Schedule of Loss required?
The Employment Tribunal will usually require the Claimant to provide a Schedule of Loss as the first of their Case Management Orders (these being orders made by the Tribunal that parties need to comply with to prepare the claim for a Final Hearing). These tend to be ordered through written Case Management Orders, or within a Preliminary Hearing if the Employment Tribunal has directed this is required in the first instance. Within the Case Management Orders, the Claimant will be informed of a deadline by which they are required to submit their Schedule of Loss.
A Schedule of Loss being ordered early in the Employment Tribunal proceedings aims to provide greater clarity on the Claimant’s claim upfront, with the view that if parties do wish to engage in settlement discussions, these can be undertaken earlier rather than later, when additional time/costs have been incurred.
The Employment Tribunal will often order the Claimant to provide an updated Schedule of Loss once all other Case Management Orders have been complied with, and closer to the time of the Final Hearing being listed. This provides the opportunity for the Claimant to then update the document and to calculate their loss more accurately up to, and including, the last day of the Final Hearing once this date is known.
What information should be included in a Schedule of Loss?
It is important that the Schedule of Loss does not over-inflate the Claimant’s loss, as otherwise it will prove less useful to the Judge at the Final Hearing. It is also likely to hinder settlement discussions either between parties directly or through ACAS and would simply invite the Respondent to submit a more realistic Counter Schedule of Loss (as outlined below).
The information which should be included relating to financial compensation in the Schedule of Loss depends on the type of claim that the Claimant has issued at the Employment Tribunal. For example:
For a claim of Unfair Dismissal/ Constructive Unfair Dismissal, inter alia, the following should be included:
A basic award
This is a statutory award, calculated in the same way as statutory redundancy pay - i.e. based on the Claimant’s age, length of service and weekly pay (subject to the weekly cap).
A compensatory award
The compensatory award is more complex to calculate. This award looks at the past and future losses of the Claimant in connection with their claim, including, for example, loss of salary, benefits, pension.
In determining the amount of compensatory award, the Employment Tribunal looks to see what is “just and equitable” based on the losses the Claimant alleges to have suffered as a result of the Respondent’s conduct. In the majority of claims, this award is capped at the Employment Tribunal at the lower of one year’s gross pay of the Claimant or the statutory cap, which is currently set at £115,115 as of April 2024.
For a claim of Discrimination, inter alia, the following should be included:
Compensation for Final Loss
This award looks at the past and future losses of the Claimant in connection with their claim, including, for example, loss of salary, benefits, pension.
Injury to feelings
This is an award provided to the Claimant to compensate for the hurt or distress that they have suffered as a result of the discrimination they were subjected to.
In determining the level of compensation to award in respect of injury to feelings, the Employment Tribunal makes reference to levels known as “the Vento Bands”, being named after the case in which they were introduced. There are three Vento Bands – the lower (less serious cases), middle (cases that do not merit an award in the upper band) and upper (the most serious cases) bands.
The current sums attributed to the bands (as of April 2024) are as follows:
- Lower: £1,100 – £11,700
- Middle: £11,700 – £35,200
- Upper: £35,200 – £58,700
Other matters which should be considered when drafting a Schedule of Loss, include:
An award for a loss of statutory rights
After two years’ of continuous service with an employer, an employee’s statutory rights increase.
The Employment Tribunal recognises the fact that, in some claims, an employee has lost these statutory rights due to the conduct of the Respondent. It acknowledges this via a compensation payment to employees known as “loss of statutory rights”, if they are claiming their employment was bought to an end as a result of the unlawful actions of their employer. At present, a sum of £400 - £500 tends to be viewed as a reasonable sum to be claimed within a Schedule of Loss for loss of statutory rights.
An uplift to compensation for failure to comply with the ACAS Code
If the Claimant considers that their employer has unreasonably failed to comply with the ACAS Code during their employment, for instance during a Grievance or Disciplinary Procedure which resulted in their dismissal (or forced resignation, which qualifies under the definition of dismissal under the Employment Rights Act 1996), they can seek to request an uplift of up to 25% on compensation awarded by the Tribunal. The Tribunal can award such an uplift if it is “just and equitable” to do so.
Any damages being claimed for personal injury, aggravated damages and/or exemplary damages
These are further damages that a Claimant may seek to claim in the Employment Tribunal. Personal injury damages will be concerned with psychiatric injury and the Claimant will need to produce medical evidence in support of this. It may be that they would be better placed to make a personal injury claim separately in the civil courts, rather than the Employment Tribunal. Aggravated damages can be awarded if the Respondent has acted in a high-handed, malicious, insulting, or oppressive manner, and exemplary damaged are awarded in very limited cases to punish the Respondent (rather than compensate the Claimant).
Any interest being claimed on the compensation
Interest can be awarded generally, as part of the amount awarded in respect of a Claimant’s claim.
What is Mitigation of Loss?
An Employment Tribunal will want to see proof that a Claimant has been taking steps to try to reduce their losses, rather than just letting the losses grow both before and during the Tribunal process. Within their Schedule of Loss, therefore, the Claimant should demonstrate any evidence of mitigation.
For example, in respect of a claim of unfair dismissal (or constructive unfair dismissal), the Claimant should be clear on whether they have obtained new employment, undertaken ad hoc work, or received any benefits as a result of not being in work. If the Claimant has been unable to obtain new work, they should provide evidence to support this. For instance, if they have attended interviews then correspondence around these can be provided, or if they have been unwell, evidence of incapacity can be provided.
What is a Counter Schedule?
Once the Claimant has compiled their Schedule of Loss, this is provided to the Respondent. If the Respondent considers that the calculations within the Schedule of Loss are incorrect, or not realistic, they may decide to provide a Counter Schedule of Loss to the Claimant based on what they consider is a realistic amount for the Claimant to achieve based on the specifics of their claim.
Any Schedules of Loss/Counter Schedules of Loss should be provided to the Tribunal within the Final Hearing Bundle, as they will be referred to by the Tribunal is determining remedy, if applicable.
Conclusion
It is important to remember that a Schedule of Loss is a guideline for consideration as to what compensation should be received from the Employment Tribunal, rather than decisive of what can be expected by the Claimant should the Judge uphold their claim.
It is beneficial for all involved in the Employment Tribunal process that an accurate Schedule of Loss is provided by the Claimant, and subsequently updated as required, as this can be referred to by the parties to assist in trying to reach an amicable resolution to matters and, in the event such discussions are not successful, by the Judge at the Final Hearing.
Therefore, it is advisable for both the Claimant and the Respondent to seek legal advice on either the drafting of a Schedule of Loss, or reviewing a Schedule of Loss and whether it would be beneficial for a Counter Schedule of Loss to be provided in the circumstances.
If you are in the position of drafting or reviewing a Schedule of Loss, or have an Employment Tribunal claim you would like our assistance with, please do not hesitate to get in touch with the Employment Law Team and we would be happy to assist.
The information provided in this article is provided for general information purposes only, and does not provide definitive advice. It does not amount to legal or other professional advice and so you should not rely on any information contained here as if it were such advice.
Wright Hassall does not accept any responsibility for any loss which may arise from reliance on any information published here. Definitive advice can only be given with full knowledge of all relevant facts. If you need such advice please contact a member of our professional staff.
The information published across our Knowledge Base is correct at the time of going to press.
