Mr M Dyer v Robert Sheppard Construction Limited — 2021

The tribunal held that Mr Dyer was unfairly dismissed by Robert Sheppard Construction Limited and that the respondent was also in breach of contract because it dismissed him without recognising a six-month notice period. The bonus-pay breach of contract claim was dismissed as not well founded, and the unpaid holiday pay claim was withdrawn and accordingly dismissed. The tribunal recorded that it had previously found the claimant’s notice period was six months and that he had obtained new employment very soon after termination.

In deciding the notice-pay issue, the tribunal applied the principles it distilled from Norton Tool Co Ltd v Tewson, Langley v Burlo and Babcock FATA Ltd v Addison. It accepted that the Norton Tool principle could apply within a narrow compass where an employee is deprived of contractual notice, remains fit and able to work, and secures new employment during the notional notice period. The tribunal rejected the respondent’s submission that the claimant’s swift re-employment should be set off against the loss, and it rejected the suggested distinction between substantive unfair dismissal and procedural unfair dismissal.

The tribunal found that the claimant had requested the longer notice period, did not want to leave, and had no guarantee of employment after termination. It also found that the respondent had failed to engage in good industrial practice by not recognising the correct notice period and by handling the redundancy process unfairly. On that basis, it held that good industrial practice required the claimant to receive the full notice period without reduction for his new earnings. After further negotiation, the parties agreed a net payment of £13,803.15 to reflect five additional months of notice pay, the claimant having already been paid one month.

On costs, the tribunal found that the respondent acted unreasonably in changing its position late in the proceedings, which caused the hearing to lose Day 1 and led to an extra hearing day. Applying rule 76(1) of the Employment Tribunals Rules of Procedure 2013, it awarded the claimant £500, limited to the cost of the additional day. The tribunal also recorded that the claimant had claimed £6,500 in costs, but it only allowed the £500 attributable to the postponement.