Notice while on sick leave
Burso v Langley and Carter, EAT,
3 March 2006
Ms Burso worked for Langley and Carter as a nanny for five years before her dismissal (without notice) in March 2004. At the time of her dismissal she was off sick and unable to work. Her contract entitled her to receive “sickness benefit in accordance with… statutory sick pay (SSP)”.
She succeeded in claims for unfair and wrongful dismissal.
The compensation for wrongful dismissal was assessed on the basis that she would have been entitled to full pay for her eight-week notice period. Langley and Carter appealed against the amount on the basis that she was only being paid SSP at the time of her dismissal. Burso argued that the court should have awarded the same amount when working out the unfair dismissal compensation.
There was no basis for the tribunal’s conclusion that Burso was entitled to full pay for the period when she was off sick. The contractual term was clear. Damages for the wrongful dismissal claim were reduced to SSP only.
In her appeal, Burso relied on the principle, established in the case of Norton Tool v Tewson  ICR 501, that it was good practice for an employer that dismissed without notice to make a payment in lieu of notice. The EAT agreed, but stated that good industrial practice is not a separate duty for which damages can be claimed. It added that a tribunal can only award sums that reflect the losses resulting from the dismissal. The EAT gave Burso leave to appeal to the Court of Appeal.