ET Schedule of Loss Calculation Question

[ULA]

I believe as a worker that is what you can claim although you appear to have been given leave by the Judge to claim age discrimination. However I would take an independent view on this.

Yes you will need to complete a full and comprehensive SoL prior to any further hearing. I do not believe you can claim a basic award as it has not been found you were unfairly dismissed.

In terms of how to work out the discrimination part of your SoL the tribunal can order compensation to be paid for:

* money you have lost because of the discrimination. This is called financial loss and covers loss up to when you ae likely to get a new job if you have lost your job or up to the point you started any new work.

*hurt or distress you've suffered because of the discrimination. This is called 'injury to feelings' and is usually based on the Vento Bands linked to in the document below at point 2
https://www.judiciary.uk/wp-content/...3-addendum.pdf

* if relevant a personal injury, such as depression or a physical injury, caused by the discrimination.

* If there has been particularly bad behaviour then there may be a consideration for "aggravated damages".

Yes you would need to prepare a witness statement and have supporting documentation for your award claim


Just as an aside I am on the distribution list for a number of employment cases updates and I have had one in today I have a feeling comments on the findings of your EAT decision.

[COMROG]

ULA

Hi Ula

The tribunal has emailed the following instruction:

'The parties are asked for suggested agreed draft directions and whether they need a TCMPH listed. Please reply within 7 days.'

Would you be able to offer any advice as to how I should/could respond?

TIA

[ULA]

You response will depend entirely on whether you feel you have any suggestions to make in respect of directions for deadlines etc in respect of preparing for the final hearing and whether you feel that a telephone case management preliminary hearing would be useful to progress this.

[COMROG]

ULA

Hi Ula

The TCMPH has been listed for mid-October; I would be grateful if you could tell me:

1. As both myself (claimant) & the respondent are LIPs, would it be okay for both to submit the CM Agendas independently without prior agreement as to content? (I know that where one or both parties are represented, judges prefer, if possible, an agreed agenda).

2. Can I request the judge make a CM Order for each party to compile and submit their own document list and bundle for the final remedy hearing?

3. In respect of the final hearing, I have a pocket-sized notebook that I used to record my daily earnings for every month for 6 years. I would like to produce the notebook as evidence of my earnings but I am not sure it will be practical to provide suitable/acceptable copies of each & every page, etc.
The figures from the notebook have been entered on the schedule of loss - would it be acceptable to produce the notebook at the hearing for examination by the judge & respondent, if required?

TIA

[ULA]

1. Generally the Tribunal like as much of the CMA to to be agreed between the parties in advance, both parties being LIPs does not mean that if possible agreement to points should not be attempted. That said, if it really is difficult to achieve then you will both need to send in you own respective completed CMAs.

2. You can request separate bundles but generally Tribunals like one agreed bundle, so it will be up to the judge to determine on that aspect.

3. If the content of the notebook is material to your claim and schedule of loss then you potentially need to consider adding it into the bundle. You can photocopy each page of the notebook.

[COMROG]

ULA

Thanks, Ula

I shall forward a CM Agenda to the respondent.

I have prepared a draft schedule of loss.
Should I send the draft schedule with the agenda now, or, copy it to the respondent when forwarding the agenda (agreed or not) to the tribunal a couple of days before the hearing?

TIA

[ULA]

Unless there was a Tribunal Order giving a date to provide your Schedule of Loss (SoL), which you must comply with, then I would suggest you can probably send it with the CMA when you send this to the Tribunal copied to the respondent.

[COMROG]

Hi All

In post 5, Ula responded:

'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'.

At the recent PH, the judge was not able, or, prepared to say and decided a further PH would be necessary as to whether the holiday pay & NMW claims should be restricted to 2 years, or, longer, as ULA has suggested above due to 'misapplication of status'.

I would appreciate your comments/advice/guidance/knowledge of recent ET, etc, cases, with respect to this subject.

ULA; would you please expand your comment below, i.e. how did you establish 'had been given leave'?

'they have been given leave to recover the period of the incorrect application of status'.


TIA

[COMROG]

ULA

Hi Ula

As a follow-up to #38 above, I have now received the written record of the PH referring to the case management orders and for a final hearing next year.
The judge has not ordered a further PH due to timing constraints and commented as follows:

'The claimant argues that he can avoid the effect of section 23(4A) because he was misled about his employment status. Although the claimant was not clear as to why he was able to make that argument it seemed to me that he might be referring to the principle of equivalence, in particular as summarised in paragraphs 50 and 60 of the recent decision in The Chief Constable of the Police Service of Northern Ireland v Agnew [2023] UKSC 33 and as described in Levez v T H Jennings (Harlow Pools) Ltd [1999] ICR 521. I express no view on the merits of such an argument but whether the claimant is able to rely upon any such principle will be, in part, fact sensitive. The claimant’s argument is based on the premise that he was misled about his status. That will require a determination of fact which will only be possible at a final hearing.

The claimant also appeared to be arguing that he was able to rely upon the principle in Smith v Pimlico Plumbers [2022] ICR 818 that “A worker can only lose the right to take leave at the end of the leave year (in a case where the right is disputed and the employer refuses to remunerate it) when the employer can meet the burden of showing it specifically and transparently gave the worker the opportunity to take paid annual leave, encouraged the worker to take paid annual leave and informed the worker that the right would be lost at the end of the leave year.” Again whether the claimant can rely upon any such principle will be fact sensitive.

There is no equivalent of section 23(4A) Employment Rights Act 1996 in the Working Time Regulations, it may be necessary to consider whether the decision in The Chief Constable of the Police Service of Northern Ireland v Agnew [2023] UKSC 33 enables older claims to be made under the Working Time Regulations, in which case it will be preferable to consider the point when the facts are fully determined'.

ULA; are you able to clarify the origin of your comment below, i.e. how did you establish I 'had been given leave'?

'they have been given leave to recover the period of the incorrect application of status'.

Would it have been deduced from the ET judgment I had previously messaged to you (#11)?

TIA

[ULA]

At the time of my post #5 where I made that statement it was based purely on what you had stated in your post #1. So not based on seeing any Judgement