ET Schedule of Loss Calculation Question

[COMROG]

A recent ET judgment decided I was an employee & a worker, not self-employed.

The Claims are:

a. Unfair dismissal

b. Direct age discrimination

c. Notice pay

d. Holiday pay

e. Unauthorised deductions of pay

f. National Minimum Wage

g. No written statement of particulars of employment

h. No written statement of reasons for dismissal.

Providing an appeal, etc, isn’t lodged by the respondent, the next step is a further telephone preliminary hearing prior to the final hearing.
I assume I will need to provide a schedule of loss.
I did submit limited details of my estimated losses in my ET1 particulars of claim & now would appreciate advice as to whether the following is correct?

In my estimates for notice pay, NMW & holiday pay, because the pay I received each year, over 11 years, was less than the designated NMW, I used that NMW in the calculation for each year I had worked.

Hope that makes sense? TIA

[ULA]

Yes you will now need to provide a detailed schedule of loss which covers all aspects of your claim.

If you were not paid the NMW each year of the 11 years then you will need to calculate the difference for each of those years based on the NMW that was in operation for that specific year.

Your notice pay should take the current NMW and be based on a weeks pay for each completed year of service.

[COMROG]

Thank you very much Ula for your confirmation

[des8]

ULA If claiming underpayment and unlawful deductions can't you only claim back a maximum of 2 years at ET?
If it goes back further than that you should be considering a claim for 6 years at county court
6 years being limitation Act backstop

[ULA]

des8 ordinarily that would be the case. However given what the OP has said this appears to be a case of incorrect status applied to the individual and they have been given leave to recover the period of the incorrect application of status.

COMROG it may be worth clarifying that the Judge has given you the ability to recoup the entire period of the misapplication of status.

[COMROG]

Des-8
Thanks for your input.
I was under the impression that Notice & NMW claims could go back to the start of the employment whereas holiday pay was in most cases 2 years, i.e. where holiday is taken but not been paid for.
However, where an employer refuses to allow a worker to take holiday, or where the worker does not take holiday because they know it won’t be paid (as in my case), the ECJ principle established in King v The Sash Window Workshop Ltd may still apply entitling the worker to claim for backdated holiday from the start of employment to the point of termination, but,
The Deduction from Wages (Limitation) Regulations 2014 imposes a cap of 2 years on retrospective unlawful deduction from wages claims & includes those for holiday pay, in respect of claims brought on or after 1 July 2015.

ULA
Yes, incorrect status for 11 years is applicable.
Thanks for the advice to clarify with the judge - I will probably, as a litigant in person, go with the principle, 'If you don't ask, you don't get' and see what happens.

[COMROG]

ULA Hi Ula

I would appreciate some further advice.

The ET judgment was as follows:

1. The Tribunal finds that the Claimant was an employee of the First Respondent, within the meaning of section 230(1) of the Employment Rights Act 1996 and section 83(4) of the Equality Act 2010, from July 2014 to the 14th March 2020.
2. The Tribunal finds that the Claimant was a worker of the Second Respondent, within the meaning of section 230(3)(b) of the Employment Rights Act 1996, from the 1st March 2009 to the 14th March 2020 whilst working as the driver of a private hire vehicle for the Second Respondent over that period.

The first respondent is an individual, a shareholder in the second respondent that is a company.
I worked for another shareholder from 1st March 2009 to July 2014.

Would you please confirm the party responsible for each of the listed claims (a to h above) when preparing the Schedule of Loss.
I would assume a b c e g h for the FR and d & f for the SF?

When calculating the years worked, do you have to apply only complete years or is it ok to use part years, i.e. say 9 months?
TIA

[ULA]

This will depend on which of the below claims were made against each respondent.
a. Unfair dismissal FR
b. Direct age discrimination FR
c. Notice pay FR
d. Holiday pay FR and SR
e. Unauthorised deductions of pay FR and SR - as far as I am aware workers have protection against this however, if this was not claimed against SR the Judgement will not cover this.
f. National Minimum Wage FR andSR
g. No written statement of particulars of employment FR as this only came in from April 2020 for workers
h. No written statement of reasons for dismissal. FR

Just my view but you may want to take some further advice to double check based on your claim.

"When calculating the years worked, do you have to apply only complete years or is it ok to use part years, i.e. say 9 months?" Which elements are you referring to of the above?

[COMROG]

ULA Thanks for the breakdown

My ET1 made the claims in respect of both respondents.
Yesterday I received the Notice of Preliminary Hearing for Case Management listed for May.
To date, I have not been requested to prepare a Schedule of Loss so presume the judge will state the liability of each respondent(s) at the hearing.
Therefore, I assume I shall have to wait until then before calculating the losses.

I would appreciate your further consideration of how the claims (d) Holiday Pay and (f) NMW may be divided between the First & Second Respondents.
I would only expect the FR to be liable for (e).

Given, the FR is relevant between 1st July 2014 to14th March 2020. The SR is relevant between 1st March 2009 to 14th March 2020,
it would appear the SR is liable for the entire period, i.e. 01.03.09 - 14.03.20, the FR 01.07.14 - 14.03.20.

So would you expect the SR to pay 100% of the entire period 01.03.09 - 01.07.14 and jointly with the FR, both paying 50% each, for 01.07.14 - 14.03.20?

My query regarding 'part years' is in relation to the period 01.07.14 - 14.03.21 & in respect of calculating:

(a) Unfair Dismissal, i.e. the basic award, i.e. counting back from 14.03.20 is 5 years 8 months approx to 01.07.14.
(c) Notice Pay, counting back as above.
(d) Holiday Pay, as above.
(f) NMW, as above.

[ULA]

Sorry I am confused as to how you have an ET Judgement on a case for which you have not yet had a preliminary hearing (PHR)

Can you maybe either post up a redacted copy of the judgement or PM it to me. Thanks

[COMROG]

ULA Hi

I have PM the judgment, etc. The next PH will in fact be the 3rd since the case started.

[ULA]

Having read the Judgement, which was really helpful so thanks for PMing that to me, it looks like there may be a claim against SR for (b) Direct age discrimination (not 100% sure) but this will likely come out over subsequent hearings.

So the Judgement relates purely to your status for each Respondent and as you have set out in your post you are an employee for the FR and a worker for the SR.

I presume, given you have got this far you understand that the May PHR will determine the Case Management Orders (CMO) and possibly timescales for a final hearing. You are likely to be sent a Case Management Agenda document to prepare which needs to be submitted to the Tribunal in advance of the PHR.

In regard to the SoL at this point you just need to have started preparing it and in answer to your questions regarding 'part years' in relation to the period 01.07.14 - 14.03.21 (I think you mean 14.03.2020) & in respect of calculating:

(a) Unfair Dismissal, i.e. the basic award, i.e. counting back from 14.03.20 is 5 years 8 months approx to 01.07.14. It is completed years so 5 years.
(c) Notice Pay, counting back as above. - notice period is one week per completed year of service.
(d) Holiday Pay, as above. - If you take the principle of King v The Sash Window Workshop Ltd and you claim back to 01.07.14 then since you were not given a holiday year period I suggest you set out a holiday year being anniversary of start date meaning that between 01.04.2014 to 31.03.2019 you have worked 5 full years at statutory holiday entitlement of 5.6 weeks and then in the final period 01.07.2019 to 14.03.2020 is will be pro-rata entitlement based on the 8.5 months worked in that final year
(f) NMW, as above - you would include the complete period 01.07.04 to 14.03.2020

sorry I cannot summise how the Judge would apportion any part of the award due to you for the period where you were worker and employee, between the Respondents.

Hope that helps. You have had rather a complex case to fight already so well done for getting this far.

[COMROG]

ULA

Hi Ula

As always, thank you for your prompt & detailed response that is much appreciated.

I have some queries & would like to ask a few questions if I may:

1. Basic Award/Compensatory Award

Do claimants normally initiate a Complimentary Award request hoping the ET judge will agree?

Do claimants normally claim the 25% maximum, hoping the judge will either accept in full or if not agreeable, then reduce or reject entirely?

2. Direct Age Discrimination

Could you possibly expand your thoughts on why you consider the SF may be liable?

3. Notice Pay

Do you always make a claim for notice pay when making a CA claim and then be prepared to drop it should the CA is accepted by the ET judge?

4. Holiday Pay

Isn't the King principle is based on a maximum of 4 weeks, i.e. 20 days/annum? (No additional statutory, etc, days holiday applicable).

As worker status established with the SR, wouldn't the claim for leave entitlement be 11 years, i.e. for the entire period of engagement from 01.03.09 - 14.03.20? (and probably jointly with the FR from 01.07.14 - 14.03.20 subject to apportionment, as you say, by the ET judge).

5. NMW

Same as above, complete period 01.03.09 - 14.03.2020, i.e. 11 years?

[ULA]

In response to your questions as per your numbers:

1. I presume you are refering to the uplift of up to 25% for not following the ACAS process. If no process was followed at all then I suggest go for the max 25% and it will then be down to the Judge to agree or reduce/reject as they see fit.

2. The judgement sets out that you were a worker of SR therefore you are protected from being discriminated against by SR so if this was part of your claim and it was found in any final hearing that the discriminaton was not a proportionate means of achieving a legitimate aim then there is the potential for an award. See section 4 of the Judgement.

3. Notice pay is set out within the compensatory award.

4. Holiday Pay - Agreed King is the 4 weeks. Yes you do also have to include the period of employment with SR for working out holiday pay.

5. NMW - yes complete period.

[COMROG]

Hi Ula

Thank you very much for clarifying the issues raised above.