Burlo v Langley and Carter: CA 21 Dec 2006

The claimant had been employed by the defendants as a nanny. She threatened to leave, but then was injured in a car acident and given a sick note. The employer immediately engaged someone else. She was found to have been unfairly dismissed. The employer complained that she should only have been awarded SSP. The EAT found that the contract imposed contractual notice terms. The claimant cross appealed for her full contractual notice entitlement of eight weeks and otherwise.
Held: She had obtained alternate employment quickly, therefore damages relating to the manner of her dismissal and future losses of wages were low. As to the loss of the right not to be unfairly dismissed, she should be awarded andpound;20.00, and as to the loss of redundacy rights, andpound;200.00. The decisions of this Court in Babcock did not affect the jurisprudential standing of the narrow Norton Tool principle one way or the other. The court did not rule, as part of either ratio decidendi, that the principle in Norton Tool either did or did not offend against section 74 of the 1978 Act, but there is in Norton Tool no wider principle by which newly formulated precepts of good industrial or employment practice can be applied to the assessment of compensation under section 123 of ERA 1996 if the result of such application would be an award greater than the loss caused to the employee as a consequence of the dismissal. The SSP was the correct measure of loss.
Mummery LJ, Smith LJ, Leveson LJ
[2006] EWCA Civ 1778, [2007] 2 All ER 462, [2007] IRLR 145, [2007] ICR 390
Employment Rights Act 1996 123, Contracts of Employment Act 1963
England and Wales
CitedBabcock FATA Ltd v Addison CA 1987
The employee was unfairly dismissed for redundancy. He was given 5 weeks pay in lieu, a statutory redundancy payment and a severance payment under the employers’ own scheme. He did not obtain another job until well after his period of notice had . .
CitedDunnachie v Kingston-upon-Hull City Council HL 15-Jul-2004
The claimant sought damages following his dismissal to include a sum to reflect the manner of his dismissal and the distress caused.
Held: The remarks of Lord Hoffmann in Johnson -v- Unysis were obiter. The court could not, under the section, . .
CitedHardy v Polk (Leeds) Ltd EAT 2-Feb-2004
EAT Practice and Procedure – Bias, misconduct and procedural irregularity
The amount of the respondent’s entitlement to pay in lieu will be relevant to the question of any compensatory award. . .
CitedMorgans v Alpha Plus Security Ltd EAT 17-Jan-2005
The Tribunal had given credit for the full amount of incapacity benefit which the employee had received during the notice period. He appealed on the grounds that it ought not to have done so. There was a conflict of authority on the point in the . .
MentionedStepek (J) Ltd v Hough NIRC 1973
. .
MentionedHilti (Great Britain) Ltd v Windridge EAT 1974
EAT The employer appealed against the tribunal’s decision to make an award to compensate the respondent for the loss of entitlement to an extended statutory notice period.
Held: The award was upheld. Lord . .
CitedVaughan v Weighpack Ltd NIRC 1974
(National Industrial Relations Court) In a claim for compensation for unfair dismissal, the employee should be treated as having suffered a loss in so far as he received less than he would have received in accordance with good industrial practice. . .
CitedEverwear Candlewick Ltd v Isaac EAT 2-Jan-1974
Sir John Brightman referred to Norton Tool, Stepek and Hilti and then said: ‘The principle behind these three cases is clear. If an employee is unfairly dismissed without due notice and without pay in lieu of notice, he is prima facie entitled to . .
CitedBlackwell v GEC Elliott Processes 1976
. .
CitedTradewinds Airways v Fletcher EAT 1981
The employee, an airline pilot, was entitled to three months contractual notice. The Tribunal had awarded compensation for the full three months even although he had earned a salary from other employment during part of that period.
Bristow J . .
CitedTBA Industrial Products Ltd v Locke EAT 1984
The employee had been unfairly dismissed with 12 weeks pay in lieu of notice.
Held: The court re-affirmed the narrow principle of Norton Tool v Tewson. Browne Wilkinson J P said: ‘It seems to us that the decision in the Tradewinds [1981] IRLR . .

Cited by:
See AlsoBurlo v Langley and Another CA 21-Dec-2006
Brief Order. . .
CitedStuart Peters Limited v Bell EAT 22-Oct-2008
EAT UNFAIR DISMISSAL: Compensation/Mitigation of loss
The employee was unfairly constructively dismissed. She was entitled to a 6 month notice period that was not paid by the employees in that period, . .
CitedStuart Peters Ltd v Bell CA 30-Jul-2009
The claimant had a contract entitling her to six month’s notice. She left claiming constructive dismissed, but found work shortly after. She still sought the full six months’ pay. The EAT found in her favour. The employer appealed.
Held: The . .

These lists may be incomplete.
Updated: 01 February 2021; Ref: scu.247496