Statement of Loss- (Tribunal)

The_Catster

Hi there,

After trying A LOT to get hold of my ACAS case manager to no avail, I am wanting some help.

I need to produce a 'Statement of Loss' to the Respondent this week reagrding my ongoing tribunal.

At a PHR, the Judge thoiught that a sex dscrimination case was just and equitable to pursue, even though I was grossly out of time, he did however, not allow for an unfair/constructive dismissal case to go ahead.

So now I am all confused as what to put in my 'Statement of Loss', do I put future loss of earnings for example???

Any one with true knowledge of what to include in a sex discrimination (Pregnancy discrimination) case, within the 'Statement of Loss', I would be truly grateful.

Many Thanks

Cat

Jarndyce

Your Schedule of Loss needs to reflect as far as possible what your actual loss has been.

Divide your loss of earnings into 'Past Loss' and 'Future Loss'. Past loss is easy because it is the actual difference between what you would have earned if you had stayed with the employer, and what you actually earned during this period.

Your future loss is more difficult. The Tribunal will have to make a best guess at how long it would/will take you to get back to the level of earnings you previously enjoyed. The more evidence you can provide to help them make this judgement the better - eg if you have been applying for dozens of jobs and failing to be shortlisted - any evidence of the market in your line of work. 6 months is not a bad default rule of thumb, but if you can argue strongly for more don't be afraid to do so.

Most of all, don't forget you have a duty to mitigate your loss - you must keep applying for jobs and keeping a record of all applications - the Tribunal will want to see evidence of your mitigation.

The 'Injury to Feelings' element is more difficult - without knowing details of the case its difficult to advise. There is guidance from case law which places claims into three classes of seriousness and attaches values to these bands. These are known as the Vento bands, after the EAT case which first drew them up.

Here's a good link for your type of claim:
http://www.workingfamilies.org.uk/articles/advising-parents/key-steps-for-running-a-sex-discrimination-claim/9-6-schedule-of-loss-and-remedy

SarEl

Sorry - you did not include the fact that your claim for dismissal was ruled out in your PM - so no you cannot claim loss of earnings because the tribunal has ruled that there is no unfair dismissal claim. If the claim is for discrimination only then you have only compensation (google Vento), injury to feelings, and a basic award. There is a lot of information on the internet. And sorry but I do not answer unsolicited PM's. I do not have time.

SarEl

Jarndyce wrote: »

Your Schedule of Loss needs to reflect as far as possible what your actual loss has been.

Divide your loss of earnings into 'Past Loss' and 'Future Loss'. Past loss is easy because it is the actual difference between what you would have earned if you had stayed with the employer, and what you actually earned during this period.

Your future loss is more difficult. The Tribunal will have to make a best guess at how long it would/will take you to get back to the level of earnings you previously enjoyed. The more evidence you can provide to help them make this judgement the better - eg if you have been applying for dozens of jobs and failing to be shortlisted - any evidence of the market in your line of work. 6 months is not a bad default rule of thumb, but if you can argue strongly for more don't be afraid to do so.

Most of all, don't forget you have a duty to mitigate your loss - you must keep applying for jobs and keeping a record of all applications - the Tribunal will want to see evidence of your mitigation.

The 'Injury to Feelings' element is more difficult - without knowing details of the case its difficult to advise. There is guidance from case law which places claims into three classes of seriousness and attaches values to these bands. These are known as the Vento bands, after the EAT case which first drew them up.

Here's a good link for your type of claim:
http://www.workingfamilies.org.uk/articles/advising-parents/key-steps-for-running-a-sex-discrimination-claim/9-6-schedule-of-loss-and-remedy

Sorry, just to clarify this - the tribunal has ruled out any claim for unfair dismissal - therefore loss of earnings cannot be claimed. The court has ruled on this aspect and said that there is no case to answer (it was out of time) and there is no "backdoor" to reinstate this. Loss of earnings because the OP felt they were forced out of their job would accrue only if they were able to claim that they were dismissed or constructively dismissed as a result of the discrimination - but this is a pure discrimination claim and not now a dismissal as a result of discrimination claim.

Jarndyce

SarEl wrote: »

Sorry, just to clarify this - the tribunal has ruled out any claim for unfair dismissal - therefore loss of earnings cannot be claimed. The court has ruled on this aspect and said that there is no case to answer (it was out of time) and there is no "backdoor" to reinstate this. Loss of earnings because the OP felt they were forced out of their job would accrue only if they were able to claim that they were dismissed or constructively dismissed as a result of the discrimination - but this is a pure discrimination claim and not now a dismissal as a result of discrimination claim.

Is that right? The claimant is entitled to claim for the loss she has suffered as a direct result of the discrimination. The principle being that the claimant is put back into the position she would have been in had the discrimination not occurred. If the discrimination resulted in her dismissal, surely the question of loss of earnings does arise, even though the fairness of the dismissal itself is not being assessed in isolation?

SarEl

No case is ever treated in isolation from connected circumstances - which is why you claim both discrimination and unfair dismissal. Both actions are the context. This is a relatively unusual case, and to be honest I am not clear what the tribunal are doing unless they wish to come to the unwelcome attention of the EAT. The unfair dismissal case has been ruled out of time (and all the claims - including the sex discrimination claim, were out of time, which is why I am expecting this to be fodder for the EAT). The claim of constructive unfair dismissal arose directly from the alleged sex discrimination. Even if sex discrimination occurred in the view of the tribunal (and even if such a ruling is not challeneged in the EAT) then the subsequnet actions of the OP in resigning cannot be compensated for because that aspect has been ruled on. There is no loss because the OP claimed the loss too late. The loss of earnings is a result of the OP's decision to resign (the constructive dismissal element of the case) - not the alleged act of sex discrimination. Since the tribunal cannot ascertain whether the resignation was justified (because they have ruled out that aspect) then there is no way of turning back the clock and saying that the loss of earnings was a result of a fundamental breach based on sex discrimination.

It isn't at all usual for a tribunal to rule so perversely in this way, so such a circumstance would rarely occur. I cannot imagine what the tribunal are doing here, but I fear it is going to end in tears all around if the employer is so inclined to litigate.

Jarndyce

Thanks for explaining - I couldn't work out how you could divorce one claim from the other either.

Uncertain

SarEl wrote: »

It isn't at all usual for a tribunal to rule so perversely in this way, so such a circumstance would rarely occur. I cannot imagine what the tribunal are doing here, but I fear it is going to end in tears all around if the employer is so inclined to litigate.

I'm sure you are right but not all employers (by any means) are inclined to litigate and most won't have your level of knowledge. Many will just see the meter ticking over very fast at the lawyers and will look to settle.

SarEl

What I am more perplexed by is the fact that the claimant didn't make this claim - the tribunal substituted it! Out of time. That is why I consdier what the tribunal is doing is relatively perverse! I often don't agree with tribunals, but I rarely think that they are being perverse!

Having said that - the OP could, thinking about it, write anything she wants in the schedule and claim anything she likes (within reason of course) because if the tribunal is being this odd then they may simply make a hash of the whole thing - it appears to me to that Judge has a loose grip on the law never mind reality! They may give her it - assuming she wins. In the end, a tribunal may be as perverse as they like - it only matters if the employer appeals. I suppose whether they did that or not might depend on what loss they are facing and who pays their legal fees!

SarEl

Uncertain wrote: »

I'm sure you are right but not all employers (by any means) are inclined to litigate and most won't have your level of knowledge. Many will just see the meter ticking over very fast at the lawyers and will look to settle.

I don't disagree at all, and I was restricting my comments to the possibility of a case - not to settlement. But if they are inclined to settle, it is important that the OP realises the full ramifications because what they may need to settle for may be a lot less than they would like.