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 said: ‘Now the reason that the Industrial Tribunal awarded the equivalent of the wages that Mr Fletcher would have earned during the whole period was that they followed the observations of the National Industrial Relations Court in Norton Tool Co Ltd v Tewson [1972] IRLR 86, as interpreted in Vaughan v Weighpack [1974] IRLR 105 (another decision of the same Court). As we see it, they took those cases as laying it down as a rule of law that (to quote the judgment in Vaughan v Weighpack) ‘that was to be considered as the irreducible minimum to which the employee is entitled under this head of compensation’. In our judgment, if the Industrial Relations Court intended to lay that down as a rule of law, they were wrong to do so. The law and the whole law on this matter is contained in the provisions of the Statute, and the provisions of the Industrial Relations Act 1971, under which those deci sions were made, were in effect the same as the provisions of s.74 of the Employment Protection (Consolidation) Act 1978, It was not until the Employment Protection Act 1975 that, in addition to compensatory award, a provision was made, enshrined in ss.72 and 73 of the 1978 Act, that there should be a basic award which would always be awarded, irrespective of the actual amount of the loss sustained by the employee; and that is, of course, the equivalent of the ‘irreducible minimum to which the employee is entitled’, referred to in Norton v Tewson and Vaughan v Weighpack.
We think that the Industrial Relations Court was doing no more than to say that, in general, an Industrial Tribunal, considering what it was just and equitable to award, might well come to the conclusion that they should start with what the employee would have earned through the notice period if he had not been dismissed. Maybe there are cases in which it might be just and equitable for an Industrial Tribunal to take that view before the basic award was introduced by the 1975 Act. But, in our judgment, it is difficult to imagine any situation, during the period in which the basic award obtained, in which it could be just and equitable to make any compensatory award which was not directly related to financial compensation for actual financial loss . . . . In our judgment, the concept of a basic irreducible minimum, apart from actual monetary loss sustained, is quite foreign to the way in which the whole matter of compensatory award is approached.’

Judges:

Bristow J

Citations:

[1981] IRLR 272

Jurisdiction:

England and Wales

Citing:

CitedHilti (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. . .
Not appliedNorton 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 by:

CitedLangley 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 . .
CitedBurlo 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 . .
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 . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 01 May 2022; Ref: scu.240325