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, during some of which she received payments for temporary work from a different employer. The ET, applying Norton Tool and Burlo, did not give credit for those payments against compensation for loss of earnings in this notice period.
The employers argued on appeal that the principle in Norton Tool had never been held to apply and should not now be held to apply a case of constructive dismissal.
Held: (i) that the principle in Norton Tool, however controversial and despite Dunnachie, had been approved in Burlo
(ii) there was no reason why that principle should not apply to constructive dismissal. The assessment of compensation, irrespective of the type of dismissal, is to be made under section 123 of ERA: and that principle goes to how compensation under 123 is assessed.
Judges:
Burke QC HHJ
Citations:
[2008] UKEAT 0272 – 08 – 2210, [2009] ICR 453
Links:
Statutes:
Employment Rights Act 1996 95(1)(a) 123
Jurisdiction:
England and Wales
Citing:
Cited – Norton Tool Co Ltd v Tewson NIRC 30-Oct-1972
(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 . .
Cited – 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 . .
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 – 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 – Babcock 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 . .
Cited – Shaw v The Port Phillip and Colonial Gold Mining Company Ltd 1884
A company secretary was to procure execution of certificates of shares in accordance with prescribed formalities. A certificate was issued and presented by the secretary in favour of a purchaser in the usual form with signature of director and . .
Cited – Ruben v Great Fingall Consolidated HL 1906
The company secretary, to pursue a fraudulent objective of his own, presented to innocent lenders a share certificate appearing to be that of the company and appearing to be signed by two directors as well as by the secretary. However, the seal had . .
Cited by:
Appeal from – 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
Updated: 23 July 2022; Ref: scu.317878