Hardy v Polk (Leeds) Ltd, EAT, 2 February 2004 up


Mitigation during notice period: Hardy was employed by Polk for seven years. Then she resigned, giving eight weeks’ notice. Polk was concerned that she was going to work for a competitor, so it asked her to sign a confidentiality agreement. Hardy refused, and was dismissed without notice the following week.

She was able to start work for the new employer earlier, but for four weeks, she was unemployed. Her claim for unfair dismissal was admitted by Polk. The tribunal awarded a basic sum reflecting the seven years of employment, but only awarded four weeks net loss for the notice period.

Hardy appealed, citing the decision in Norton Tool Co Ltd v Tewson (1972), where it was held the employee could recover salary for the full notice period without deduction for any money earned during that period.

The EAT, dismissing the appeal, stressed that the purpose of the statutory provisions was to compensate the victim of an unfair dismissal, not to penalise the employer. Hardy had mitigated her loss and she was not permitted to make a profit from her claim.

The right to minimum statutory notice does not provide a right to a notice payment, only a right to receive a period of notice. It does not create a debt – Hardy’s claim was in damages, not in debt.

The Norton Tool decision had, according to the EAT, overlooked the mitigation provisions in force at the time.

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