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11 December 2009 / Rad Kohanzad
Issue: 7397 / Categories: Features , Employment
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Balance of payments

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Rad Kohanzad examines the dents in the Norton Tool principle

The decision of the Court of Appeal in Stuart Peters v Bell [2009] EWCA Civ 938, [2009] All ER (D) 54 (Oct) provides that an employee who is constructively unfairly dismissed without notice has to give credit for earnings he earns during his notice period. An expressly dismissed employee does not.

This decision represents another nail in the coffin for the “notice pay” point in Norton Tool v Tewson [1972] ICR 501, [1973] 1 All ER 183. Are there any more such nails lurking? 

Section 123 of the Employment Rights Act 1996 is the statutory provision that dictates compensation in unfair dismissal cases, and is the same provision that was in existence at the time of Norton Tool, although within a different Act.

NIRC ruling

In apparent contradiction to the common law duty to mitigate your losses, the National Industrial Relations Court (NIRC)—now the Employment Appeal Tribunal (EAT)—in the case of Norton Tool, found that where employees are unfairly dismissed without notice they are

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