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To be assessed by the tribunal

Quite often schedules of loss will leave off figures for some types of damage and replace them with words like ‘in the tribunal’s discretion’ or ‘to be assessed’. The expectation is that the tribunal will fill in the blanks.

This is not a good idea.

Your submissions, including your schedule of loss, should ask the tribunal to do something. There should not be gaps, where the tribunal does not know what you are asking for.

This is partly a practical issue. Things will be easier for everyone involved if it is clear what the claimant is trying to achieve.

The other issue is one of advocacy. The schedule is an opportunity to persuade the tribunal and to set up other submissions.

Imagine a case in which a women unfairly dismissed a few months before starting maternity leave. She will want to claim for the loss of earnings flowing from the dismissal. The hearing takes place about a month after she gives birth. One approach would be to claim for loss up to the hearing, then leave future loss ‘at the discretion of the tribunal’.

A better approach, however, would be to set out exactly what the loss is likely to be. The Claimant may not yet be in a position to seek work. So set out when she will be able to start looking. She will probably have some difficulty in finding a job. The job market is unfriendly to new mothers and she will need to balance her search with her new childcare responsibilities. So she should claim for a considerable period of time to reflect this – probably at least six months. When she finds a new job it may well be on a lower salary. It will take time to work back to her old earnings. So she should claim for that period as well.

All of this will be contested by the respondent. He will say that the Claimant should start looking for work immediately and that she will probably find a new job, at her old salary, very quickly. The tribunal may agree, at least to some extent.

But setting out a position is more persuasive than leaving things entirely to the tribunal. It also gives you the opportunity to make more submissions. Once you say ‘at the discretion of the tribunal’ it is difficult to say much else. After all, you have said you are leaving it to them. If you say precisely what you want the tribunal to do, you can call evidence and make submissions to support your position.

7 comments

  1. Ross

    I can understand this point when related to submissions, but what of the ET1?

    If one is claiming for an amount of wages, for example, and it is unclear what amount to specify or tactically advantageous to avoid specifying a figure, can this be left until later? Would “such amount as may be found to be due” do?

  2. Abigail

    I do not claim any loss in my ET1 unless the figure due is already clear. When a claim is defended, I try to send ACAS an initial schedule of loss for negotiating purposes only. I usually change that before the hearing.

    I have found that I cannot ask for more than is on my schedule of loss. If I say 10% increase for failure to finish grievance procedure, a tribunal has objected to me asking for more in the hearing.

  3. Michael

    I agree with Abigail.

    The ET1 should set out the basis of your claim, but it need not give detailed figures unless they are available.

    Changing schedules of loss is an interesting area. Some people tend to see them as like pleadings, and therefore not to be changed much, if at all. Other people see them as more like submissions and think they can be changed pretty freely.

    My own view tends towards the submission side of things. I find that, provided you’re not trying to add in whole new areas or types of loss, tribunals are happy to look at an amended schedule.

  4. Ross

    Thanks for your reply.

    From an entirely lay point of view I would say the same thing. In particular, the later the schedule goes in, the more likely it can properly be considered a form of submission.

  5. Ramesh Valapil

    Can uplift be included in the schedule of loss?, If so how to come to a figure as uplifts are considered at a range of 10 – 50% ?

    • Naomi

      Yes – if you say you are entitled to an uplift, it is sensible to include that on your schedule. How to pick the right percentage between 10 and 50% is trickier: one of the many valid criticisms of the dispute resolution procedures was that it was so unclear how the tribunal was supposed to make this decision. The relevant factors will be how important the failure to comply with the relevant procedure was, and to what extent it was the employer’s fault. So if it was a serious failure that was completely the employer’s fault, it makes sense to try for 50%; if it was less serious and/or the employee contributed to the failure, the uplift is likely to be less. (I have answered this question because it is expressed in a very general way: it’s worth reiterating that we can’t give advice on specific cases by way of this blog.)

  6. Ramesh Valapil

    Thank you for your reply. My claim now is settled through a judicial mediation. I did include a uplift (30%) in my Schedule of Loss. The Tribunal Judge who at the mediation felt that it shouldn’t be included for negotiation purposes, but he was still impressed with the schedule of loss that I prepared using your template. Thanks ever so much for the book and on-line templates.

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