(National Industrial Relations Court) The court was asked to calculate damages on a dismissal, and particularly as to whether the manner of the dismissal should affect the damages.
Held: The common law rules and authorities on wrongful dismissal are irrelevant. That cause of action is quite unaffected by the Act which has created an entirely new cause of action, namely, the ‘Unfair Industrial Practice’ of unfair dismissal. The measure of compensation for that statutory wrong is itself the creature of statute and is to be found in the Act of 1971 and nowhere else.
Donaldson P said: ‘The amount to be awarded is that which is just and equitable in all the circumstances, having regard to the loss sustained by the complainant. ‘Loss’ in the context of section of 116 does not include injury to pride or feelings. In its natural meaning the word is not to be so construed, and that this meaning is intended seems to us to be clear from the elaboration contained in section 116(2). The discretionary element is introduced by the words ‘having regard to the loss’. This does not mean that the court of tribunal can have regard to other matters, but rather that the amount of the compensation is not precisely and arithmetically related to the approved loss . . The circumstances of the dismissal were relevant only if they were such as to cause or to be likely to cause future loss. Injury to the employee’s pride or feelings is not loss and is irrelevant . . We need only consider whether the manner and circumstances of his dismissal could give rise to any risk of financial loss at a later stage by, for example, making him less acceptable to potential employers or exceptionally liable to selection for dismissal.’ It was good industrial relations practice for an employer who dismisses without notice to make a payment in lieu of notice. Where such sums are paid, no credit has to be given by the employee for monies earned by the employee from other employers in the notice period. It was held that damages for unfair dismissal should therefore include full pay for the notice period without reduction for mitigation.
Judges:
Donaldson P
Citations:
[1972] IRLR 86 NIRC, [1973] 1 WLR 45, [1972] ICR 501
Links:
Statutes:
Industrial Relations Act 1971 116(1)
Citing:
Cited – Addis v Gramophone Company Limited HL 26-Jul-1909
Mr Addis was wrongfully and contumeliously dismissed from his post as the defendant’s manager in Calcutta. He sought additional damages for the manner of his dismissal.
Held: It did not matter whether the claim was under wrongful dismissal. . .
Cited by:
Cited – Flexible Ducting Ltd v Stirling EAT 25-Sep-2001
The issue was the valuation of share options no longer exercisable by the claimant after dismissal. Any assessment involved unwelcome speculation, but the tribunal had recognised the need to take a broad approach. No error of law was shown in the ET . .
Cited – Malik v Bank of Credit and Commerce International (BCCI); Mahmud v Bank of Credit and Commerce International HL 12-Jun-1997
Allowance of Stigma Damages
The employees claimed damages, saying that the way in which their employer had behaved during their employment had led to continuing losses, ‘stigma damages’ after the termination.
Held: It is an implied term of any contract of employment that . .
Cited – Jones v Lingfield Leisure Plc CA 18-Jun-1998
The claimant had been unfairly dismissed but in addition to this employment she had also lost her earnings from a private practice as an aerobics teacher at the same facility where she was employed. She had been awarded damages for the employment . .
Cited – Leonard v Strathclyde Buses Ltd 1998
To receive a compensatory award, a claimant must provide proof of loss. Referring to Norton Tool, Lord Blofeld said: ‘The approach . . has, as we understand the position, governed the attitude of tribunals to compensation ever since. It is, in our . .
Cited – Dunnachie v Kingston Upon Hull City Council; Williams v Southampton Institute; Dawson v Stonham Housing Association EAT 8-Apr-2003
EAT Unfair Dismissal – Compensation
In each case, The employee sought additional damages for non-economic loss after an unfair dismissal.
Held: The Act could be compared with the Discrimination Acts . .
Followed – Wellman Alloys Ltd v Russell 1973
Only economic losses are recoverable following a dismissal. . .
Folowed – Robert Normansell (Birmingham) Ltd v Barfield 1973
The court refused to award damages for non-economic loss after a dismissal, and particularly in this case for loss of job satisfaction. . .
Cited – O’Donoghue v Redcar and Cleveland Borough Council CA 17-May-2001
The Tribunal had been entitled to find on the evidence that an employee unfairly dismissed by reason of sex would have been fairly dismissed for misconduct six months later in any event because of her antagonistic and intransigent attitude. The . .
Cited – Dunnachie v Kingston Upon Hull City Council; Williams v Southampton Institute; Dawson v Stonham Housing Association EAT 8-Apr-2003
EAT Unfair Dismissal – Compensation
In each case, The employee sought additional damages for non-economic loss after an unfair dismissal.
Held: The Act could be compared with the Discrimination Acts . .
Cited – Dunnachie v Kingston Upon Hull City Council CA 11-Feb-2004
Compensation for non-economic loss brought about by the manner of an unfair dismissal is, on authority and on principle, recoverable. The award of such compensation by the employment tribunal in the present case was not excessive and was adequately . .
Cited – Dunnachie 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, . .
Cited – Langley and Another v Burso EAT 3-Mar-2006
The claimant had been dismissed shortly after becoming unable to work. She sought payment of her normal salary during the period of notice saying this was established good practice.
Held: ‘We are put in the invidious position of being bound by . .
Cited – Stepek (J) Ltd v Hough NIRC 1973
. .
Cited – Hilti (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 . .
Cited – Everwear 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 . .
Cited – Vaughan 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. . .
Applied – Blackwell v GEC Elliott Processes 1976
. .
Not applied – Tradewinds 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 . .
Cited – TBA 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 – Stuart 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, . .
Cited – Stuart 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 . .
Lists of cited by and citing cases may be incomplete.
Employment, Damages
Updated: 07 June 2022; Ref: scu.182102