In order to be awarded compensation by an employment tribunal, you need to provide the tribunal panel with a financial figure that fairly reflects the loss caused by your employer’s wrongdoings.
This is where a schedule of loss comes in, but what kinds of things can you claim for and what calculations you should use to arrive at the final figure?
In this guide, we discuss how to prepare your schedule of loss and the information you need to include.
What is a schedule of loss?
A schedule of loss is a document that you, as the claimant in an employment tribunal case, prepare and submit to the tribunal before it hears your case.
The schedule lists the losses that you have incurred as a result of being ill-treated by your employer. When you add up all these amounts, the total figure is the amount that you will be asking the tribunal to award you if you win the case.
It will cover compensation for such things as any time you’ve spent out of work, lost holiday pay, notice pay and loss of any statutory rights such as statutory sick pay, holiday pay, maternity/paternity leave and more.
When should you prepare a schedule of loss?
Ideally, you should draft a schedule of loss early on in your dispute and before you submit your ‘ET1’ tribunal claim form, although you are not required to submit such a schedule to the tribunal at this stage.
If you produce a schedule early on it will also help your attempts to negotiate with your employer to settle your claim before you submit a tribunal claim. It will also be invaluable in guiding you on how much to ask for in any settlement deal.
If you go ahead with a tribunal claim and your claim is accepted by the tribunal for judgment at a tribunal hearing, they will tell (‘order’) you to provide a schedule of loss and a deadline for submitting it. It is often at or around the same time as any preliminary hearing for your case.’
What information should be included in your schedule of loss?
The information you present in a schedule of loss for an employment tribunal case will vary depending on the type of claim you are making. It will typically include at least some of the following:
(Detriment means action taken by your employer against you when you’re employed that falls short of an actual dismissal but which disadvantages you. For example, denying you a promotion, withholding a scheduled pay rise, forcing you onto an unjustified performance improvement plan.)
There is a number of reasons you may have suffered financial loss, such as loss of earnings from being unfairly dismissed or being unable to continue working for your employer (ie constructive dismissal) or from not being paid bonuses or commission due.
Evidence you’ll need to demonstrate this will be things like payslips and bank statements.
Loss of earnings
This is to compensate you for actual losses caused by being out of work. You won’t get compensation for periods when you already have another job with similar pay.
For ‘regular’ unfair dismissal claims, the compensatory award is always capped at the lower of one year’s gross pay and the statutory cap which is £89,493 (from April 2021). That limit does not apply to ‘automatically unfair’ dismissals such as whistleblowing, or to discrimination compensation.
However, we find that in practice, compensation isn’t normally more than 6 months for any claim, as it can be hard to calculate exactly how much you may lose in the months and years to come.
Evidence could include estimates about how long you could be unemployed, based on what the job market is like for jobs such as yours in your region.
If your job is scarce and/or there is a diminishing demand for it, then you may be forced to change your career. In such a case, your award may even provide cover for retraining or compensation for the lower wages you would expect to receive in a role for which you would be newly qualified.
Mitigation of loss
The tribunal will want to see proof that you have been doing everything possible to mitigate (in other words reduce) your losses, rather than just letting them grow and potentially increasing the size of your claim.
Mitigation usually means making every effort to earn money in alternative new employment or possibly self-employment.
Evidence of mitigation of loss includes keeping a diary of jobs applied for and details of any responses or interviews you have gone to. If you have been unable to work due to ill health or childcare reasons, evidence will also be required to prove this. (See Evidence gathering)
Injury to feelings
You can only claim compensation for injury to feelings for discrimination and cases where you suffer a detriment (see above) short of dismissal, such as whistleblowing. It is different from personal injury claims (see below).
The award is to compensate you for how much your employer affected you psychologically. It will require you to give evidence to the tribunal about how you were made to feel and whether/to what extent you have suffered as a result of conditions like mental distress, stress, anxiety, depression, damage to your personal relationships.
There are three categories of injury to feelings called ‘Vento bands’ (named after the case where they were first introduced) which can help you assess how much to claim:
- Less serious cases: £900 to £9,100
- Moderately serious cases: £9,100 to £27,400
- Extremely serious cases: £27,400 to £45,600 – and more in exceptionally serious cases.
The above are updated annually and are current from April 2021.
If you have been physically injured or suffered a serious mental health problem as a result of discrimination or harassment, you could make an employment tribunal claim for personal injury under the Equality Act 2010. You’ll need a medical report or similar evidence to prove that the discrimination or harassment caused the problem.
However, you may be best served by making a personal injury claim in the civil courts, such as a county court, rather than in an employment tribunal. The time limits for bringing a personal injury claim to a civil court are different – 3 years for personal injury and 6 years for harassment, compared with 3 months less one day in an employment tribunal.
So be sure to seek specialist legal advice from a suitably qualified employment lawyer before you make a final decision.
Can you claim interest on any of your losses?
In employment tribunals, interest can be claimed on past financial losses in discrimination cases and for injury to feelings at the rate of 8% per annum (at 2021/2022).
The interest is calculated on a daily basis up to the date on which the compensation award was calculated (usually the day your tribunal hearing ended. However, the starting date for each type of claim is different, as follows:
Interest on financial loss claims in discrimination cases
Interest on this type of claim is calculated as being from a date midway between the discriminatory act to the date your award was calculated.
You are also entitled to interest at the same rate on your total tribunal award if your employer doesn’t pay you the amount awarded within 14 days of the tribunal’s decision.
Interest on injury to feelings claims
This is calculated as being from the date of the discriminatory act.
Example of a completed schedule of loss
To give you an idea of what a schedule of loss looks like, below is a completed example from a recent case for a discrimination (maternity) claim. (There isn’t a standard form for a schedule of loss in the employment tribunals.)
Note that the claimant found and started a new job just one week after the termination of her old employment.
In addition to using square brackets to indicate where we have removed information to preserve the claimant’s anonymity, there are one or two comments also in square brackets to help you interpret the information provided. The tribunal hearing is also referred to as ‘the trial’ in this schedule example.
SCHEDULE OF LOSS
IN THE EMPLOYMENT TRIBUNALS
[NAME OF] EMPLOYMENT TRIBUNAL CASE 1234567/[Year]
[COMPANY NAME] LIMITED (Respondent)
CLAIMANT’S SCHEDULE OF LOSS
|Net weekly basic pay||£591.05|
|Contractual notice period||£3333.33 gross 1 month|
|Date of birth of claimant||[Date]|
|Period of service||From [Date] to [Date]|
|Complete continuous service||16 months|
|Age at effective date of termination (EDT)||[Age]|
|Gross weekly basic pay||£769.52|
|New Job||[Start date]|
|Net weekly basic pay||£527.69|
|Gross weekly basic pay||£673.08|
Loss to date of tribunal
1.1. Loss of basic salary from [date] to [date]
68 weeks x £574.65 (net) £39076.2
1.2. Loss of statutory rights [fixed amount]
1.3. Loss of pension benefit to date of tribunal
Subtotal past loss £41176.2
Less mitigation (Income earned)
1.4. Sums obtained through mitigation to date
of tribunal [67 weeks net pay at new salary]
Total past loss £5820.97
2.1. Future loss of earnings [6 months from trial so
losses until [date] net weekly loss of £63.36 per week
for 26 weeks
2.2. Future loss of pension
Total future loss £2297.36
TOTAL OF COMPENSATORY AWARD £8118.33
3 Non-Financial Losses
3.1 Injury to feelings (maternity discrimination)
3.2 Interest on injury to feelings from [date] to
date of trial @ 8%. £9.64 per day for 726 days
4. Notice Pay
4.1 1 month’s notice pay
4.2 [Year] holiday entitlement (6.5 days)
4.3 [Further year] holiday entitlement (18)
GRAND TOTAL £34,720.52
What happens to your schedule of loss once submitted?
It is important to remember that a schedule of loss is a guideline for the tribunal of what you would ideally like to be awarded, rather than a document that conclusively lays out the money you will be awarded by the tribunal.
Claimants are often asked to submit an updated schedule of loss closer to the hearing date.
Employer’s counter schedule
After submitting your claim to the tribunal a copy will be sent to your employer’s representatives, who will then organise a response. Once it has been reviewed by your employer and their representative it is likely they will produce a counter schedule of loss.
This will include their responses to the original schedule and propose a new set of figures that they believe more accurately reflects the situation.
If you are seeking compensation from your employer and want to know what you can claim and how to prepare for an employment tribunal, Monaco Solicitors are experts in this field.
We specialise in employment law and know how difficult it can be to put together a schedule of loss for the first time. Our legal teams can discuss your current situation and help you calculate a realistic figure that could be awarded at the tribunal, using our experience to build a strong case on your behalf.
To find out more about our no-obligation consultation: