ET Schedule of Loss Calculation Question

[COMROG]

ULA

Hi Ula

I have received an EAT Notice & Grounds of Appeal, etc, lodged by the 2^nd Respondent.
I wondered if you could take a look when have time. Can I PM you? Thanks

Just saw this Ula:
Court of Appeal Judgment in Smith v Pimlico Plumbers Ltd (01.02.22) EWCA Civ 70;

Workers can now claim for all unpaid holiday.
The ruling is limited to four weeks holiday per year, being the holiday guaranteed by the Working Time Directive.
The Court held that a worker cannot be said to be exercising the right to paid annual leave in a situation where they have taken unpaid leave when the employer has disputed the right and has refused to make a payment for such leave.
Workers who are denied paid holiday will be able to carry the holiday over into subsequent leave years, whether they took holiday or not, and to claim for payment in lieu on termination.
The two year backstop on unlawful deductions from wages claims introduced in 2015 is not relevant when claims are brought under the WTRs.
Any worker who has not received paid leave because they've been wrongly treated as self-employed and who brings a claim within three months of termination, will be able to recover compensation going back to the start of their employment (unless that's earlier than 1998) - based on their normal remuneration. They may also be able to claim interest.
A worker only loses the right to paid holiday at the end of a leave year if they have actually had the opportunity to exercise the right.

[ULA]

Yes I had seen that Judgement.

I can take a look - is there anything specific you want to know?

[COMROG]

ULA

Hi Ula

1. I presume the ET PHR listed for May will now be stayed pending the outcome of the EAT?

2. Will there now be a case management EAT PHR, etc, prior to a final hearing?
Any idea how long EAT procedures are taking at present?

3. Would I be expected to defend/argue the ETs ‘dual employment’ judgement?

4. I understand the comparison made to the ‘tripartite agency worker arrangements’ mentioned in the ‘authorities’ referred to in the appeal but not the relevance - any thoughts, please?

TIA

[ULA]

1. It the Tribunal believe that the appeal has impct on the ability to hold the PHR, given what it is outlined to determine as set out in the ET judgement, then it will be stayed.

2. All that has happened at the moment is that the appeal has been lodged. It will now go through an EAT"shift" process which leads to the appeal being designated as a) Requiring further consideration on paper b) go to a a PHR c) go straight to final hearing d) issue a notification under rule 3 (7) i.e. where it appears either there are no reasonable grounds of the appeal being successful or it is an abuse of process.

EATs are suffering delays just like the ETs.

3. They are clearly trying to argue that you cannot be an employee of one and at the same time a worker of the other so yes, you are going to have to argue your dual employment status if the appeal goes ahead.

4. The Cairns v Vistion case was in relation to an agency worker employed by an employment business under a contract of employment but who chose to bring a claim against the end-user for unfair dismissal, believing that it would have a greater chance of success. This went to the EAT, who held that, there was an express contract with the employment business and that there was no good policy reason nor business necessity for implying a contract with the end-user.

The relevance for you is that this is the first case in which the EAT considered the possibility of an agency worker having parallel contracts with an employment business and an end-user in respect of the same work. Although the EAT's decision did not categorically rule out the existence of parallel contracts in all circumstances, it suggests that it will be hard for employees to overturn the established principle that a servant cannot have two masters in respect of the same job. Given your post 3 they are using this case to support the argument of their appeal that you cannot be an employee of one and a worker of the other.

[COMROG]

ULA


Hi Ula
The (2^nd respondent) appeal was accepted at the sift - I have not heard in respect of the appeal lodged by the 1^st respondent.
I now have to submit a Respondent’s Answer (EAT Form 3) within 28 days (14.04.22) to resist the appeal.
I intend to rely on the reasons given by the Tribunal.
I understand those reasons can be supplemented by other grounds put forward to the tribunal but not relied upon by it in support of its findings.
In my opinion, there doesn’t appear to be any.
I do not intend to cross appeal.

I presume at this stage there is nothing more I can do, or, is there anything else I need to consider?

TIA

[ULA]

If you are not going to cross appeal then you need to complete 1-3 of the EAT 3 form and then for clarity just confirm you are not cross appealing. I think as you say that is it for the time being.

In case you have not found this document in your research I have linked to the Practice Direction (Employment Appeal Tribunal - Procedure) 2018 below

https://www.judiciary.uk/wp-content/...-19-09-19-.pdf

[COMROG]

ULA

Hi Ula

I should be grateful for your thoughts;

The 2 appeals were lodged within days of each other at the end of January and acknowledged by the EAT within the first week of February.
The order in respect of the 2^nd respondent was received by the middle of March.
When I returned the EAT Form 3 in the middle of April, I commented I had not been informed of a decision in respect of the 1^st respondent's sift.
Practice Direction 10.1.1 states ‘The EAT will deal with applications in order'.

The 2 appeals are obviously independent of each other, identified by different reference numbers.
However, bearing in mind 10.1.1, I would have thought it would be in everyone's interest, including the EAT, to deal with the appeals concurrently.

Do you think I should raise the matter with the EAT again?

Regards TIA

[ULA]

Given that they are interlinked then it would be worth contacting the EAT to see what progress there is on the 1st respondent.

[COMROG]

ULA

Hi Ula

With reference to my post above and your response, I have still not been notified of any decision in respect of the 2nd respondent's EAT sift 3 months after the 1st respondent's decision. I did write to the EAT in May - is it worth writing again - is there any review process, complaints procedure, etc, available?

[ULA]

It does not hurt to write again.

No there is no review/complains procedure.

[COMROG]

Hi

At long last, I have a date for the EAT FH at the end of March next year.
Both appeals made it through the sift.
I believe both of the appellants will now have counsel representation.
The EAT Notice has not provided any dates for exchanging documents - is it possible we will receive a case management order in due course (with or without a hearing)?
I presume, in any event, counsel will agree between them responsibility for producing the hearing bundle, etc.
I presume I will be contacted by the appellants at some stage.

My main concern this time is finalising my skeleton arguments, prepared from the grounds of appeal submitted by the appellants.
Looking at the 2018 Practice Directions, submission to the tribunal has to be at least 14 days before the FH.
What I am not clear on is:

1. Do we exchange the SAs at the same time, i.e. agree on a day & time?
2. If this is the case, we are producing our SAs without sight of the other parties' SAs?
3. If so, is it normal practice to base the content of the SA solely on the grounds of the appellants' appeals?

Also, I am unclear on the production of authorities.
If 10 are allowed, is the allocation decided solely between the parties?
I've only referred to a couple - would it be in order to notify the appellants of the relevant cases, suggesting they include copies in the bundle provided to the tribunal?

TIA

[ULA]

1. In the absence of any directions or orders on dates then Skeleton Arguments must be lodge with the EAT no less than 14 days in advance of the hearing date. Please note the normal deadline for this is by 4pm. It is normal for agreement to be reached on exchange between the two parties.

2. See answer above
3. Section 15 of the Employment Appeal Tribunal – Practice Direction 2018 sets out the production of SAs but also it should be based on what you set out in your Respondent Answer.

In respect of your question on Authorities, paragraph 16.2 of the EAT Practice Direction 2018 states that “The parties must cooperate in agreeing a list of authorities.” This means that you and the Appellant need to agree the list of authorities you are both going to rely on to create one document. This just means that if you are both relying on the same authorities the detail in not duplicated for the ease of reviewing by the Judge.

I would suggest you read all of section 16 which sets out how the authorities need to be quoted and presented to the EAT.

[COMROG]

ULA

Hi

The EAT allowed both appeals (28.06.23), the reasoning in line with your comment ¶ 3 & 4 of Post 19 above.
The EAT substituted the original ET decision with the finding that I was a worker (and also an employee for Equality Act purposes) for solely the 1^st respondent throughout the periods I was driving his taxi.

I had prepared a draft schedule of loss based upon the claims listed in Post 8, as follows:

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 (only applicable to workers from April 2020)
h. No written statement of reasons for dismissal

I should be grateful for advice as to the claims that remain relevant.
I realise that unfair dismissal is not; could this be replaced with ‘wrongful dismissal’ in connection with b, c & h?
If so, how would this be calculated?

Also, I realise g is out.

TIA

[ULA]

So based on your last post the EAT found that you were a worker of the first respondent (FR) and an employee only for Equality Act (EqA) purposes. In which case I believe your schedule of loss (SoL) should be based on:

a. Unfair dismissal
b. Direct age discrimination YES (based on fact EAT have said you are an employee for EqA purposes)
c. Notice pay
d. Holiday pay YES (based on statutory minimum level of paid holiday)
e. Unauthorised deductions of pay YES
f. National Minimum Wage YES
g. No written statement of particulars of employment (only applicable to workers from April 2020)
h. No written statement of reasons for dismissal

Wrongful dismissal is when you are dismissed in breach of the employment contract. From what I understand you have not made a claim for wrongful dismissal so cannot now try to claim compensation for a claim not made, nor were you an employee under a contract of employment.

I think I am correct on the above given my understanding of the EAT findings but you may want to independently verify this.

[COMROG]

ULA

Thanks, Ula

So, basically, in my case, the claims in respect of a worker would be limited to:

Direct age discrimination
Holiday pay
NMW
Unauthorised deductions of pay

Re: Discrimination

I'm thinking in terms of having to complete as much of the SoL as possible prior to a PH (whereupon the judge may give advice).
How would the discrimination claim be calculated?
or,
would the assessment of an award be entirely at the discretion of the judge?
I'm thinking of basic/compensatory awards (or is this solely for unfair dismissals?).

I assume evidence would be given in the form of a witness statement along with any relevant supporting documentation attached?

Can you direct me to any online guidance that may assist with the preparation of a claim for discrimination?

TIA