The government has recently consulted on the proposal to reintroduce modest fees in the Employment Tribunals and Employment Appeal Tribunal (closed 24 March 2024). It proposes £55 paid by the Claimant in both tribunals.

One of the stated aims includes acting as an incentive to parties to settle their disputes early through ACAS without the need for claims to be brought to an Employment Tribunal.

However, one of the most important benchmarks to negotiate a settlement is the likely compensation a Claimant would receive upon a successful claim. The other main negotiating benchmark is the strength of the claim.  Very broadly, a reasonable settlement is a percentage reduction, depending upon the legal merits of the claim and litigation risk, to the total of the Schedule of Loss. The compensation and how it is calculated is set out in what is known as a “Schedule of Loss”; in other words, a schedule of compensation that the Claimant is asking the tribunal to order the Respondent to pay them upon the success of their claim.

Surprisingly, there remains no obligation to provide a Schedule of Loss to ACAS during ACAS Early Conciliation, the precursor to Employment Tribunal litigation, set up to assist parties resolve claims without recourse to tribunal proceedings; nor any obligation to provide one with the Employment Tribunal claim form. A tribunal will not usually order production of a Schedule of Loss until the preliminary hearing to determine case management issues (in short, the hearing to determine the timetable to prepare for the full merits hearing). The case management hearing takes place after the Claimant has launched their claim and the Respondent has submitted their defence.

I would suggest that the obligation for the Claimant to provide a Schedule of Loss and the Respondent to provide a counter Schedule of Loss be at a much earlier stage in the legal process. The Schedule of Loss is key to settlement, and it makes sense that a requirement for the parties to address their minds to the value of a claim, preferably at the ACAS Early Conciliation stage, is mandatory. There will always be disagreement between the parties as to how long it will take an employee to obtain alternative work and a Schedule of Loss for unlawful discrimination or harassment is more complex as it includes compensation for injury to feelings and/or psychiatric injury and compensation is not capped for such claims. Claimants and Respondents can often be surprised at how a tribunal calculates compensation and there can be misconceptions about how to approach a settlement. 

Information about how to prepare a Schedule of Loss can be found on our website at How to I complete a schedule of loss for an Employment Tribunal claim?.

For specialist advice about settlement or a schedule of loss please contact one of our experienced employment solicitors via our Client Care Manager, whose details can be found on our website www.springhouselaw.co.uk 

Our expert employment law solicitors all have many years’ experience advising individuals who are in your position. We will be able to guide you through the process and to help you secure the best possible outcome.

We offer a range of services, so please contact our friendly customer services team to discuss further via hello@kilgannonlaw.co.uk or 0800 915 7777.

Disclaimer 

The above provides a general overview of areas in employment law and is not intended nor construed as providing specific legal advice.

This article is for information purposes only and is correct at the time of publication. It does not constitute legal advice.

07.05.24