In Burlo v Langley the Court of Appeal reaffirmed the narrow principle laid down in Norton Tool Co Ltd v Tewson that damages for unfair dismissal should include full pay for the notice period without having to give credit for sums earned from other employers during that period. The Court made it clear, however, that the Norton Tool case did not mean that damages for unfair dismissal should be assessed in such a way that resulted in an employee receiving an award greater than the loss suffered. In the present case the Claimant was unable to work during her notice period as she was involved in an accident. Contractually, she was only entitled to receive statutory sick pay and this, rather than full pay, was therefore the correct measure of her loss and therefore the measure of damages she could recover.

The narrow principle contained in Norton Tool can result in an employee receiving an amount in excess of the loss they have suffered if they secure fresh employment during the notice period. Nevertheless, it is clear that the courts will continue to apply this principle unless or until it is overturned by the House of Lords.

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