Now with respect, I disagree with Burton J on the application of Morgans v Alpha Plus Security Ltd [2005] ICR 525 EAT and this matter will be ventilated in the Court of Appeal (now reported: Burlo v Langley [2006] EWCA Civ 1778 21 December 2006); the question being whether the rule set down by the National Industrial Relations Court in Norton Tool Co Ltd v Tewson [1972] ICR 501 remains good law in respect of the period of notice and mitigation during the minimum period of notice. That, as Burton J rightly says, relates to unfair dismissal and is not relevant to this case which is purely about wrongful dismissal ie breach of contract. In my judgment the dividing line between a straightforward common law approach and that determined in Abrahams v Performing Rights Society [1995] ICR 1028 CA is one which is easy to discern. It is plain that the award here was one of damages. I apply the reasoning given by Ward LJ in his majority judgment in Cerberus Software Ltd v Rowley [2001] ICR 376 (with which Jonathan Parker LJ agreed) where he said this:-
This case is not one which is akin to Abrahams where there was a duty to make a payment in full and it was properly depicted as a payment of a liquidated sum due. This contract, as is clear from the clause which I have cited (para 3 above), gives the Respondent a power to pay a liquidated sum but does not give the Claimant the right to it. The Respondent elected to make a payment in lieu of notice of two weeks rather than the three months properly due. It is squarely within the territory of Cerberus and it is not regulated by Abrahams .
Thus I hold that the Chairman fell into error and the correct order which I can now make by agreement of the parties and without remission to the Chairman is based upon the following principles. The Claimant will give credit for all his earnings during the notice period, which occurred between 5 and 21 December 2005. As a matter of concession by the Respondent the figures include rolled up holiday pay and in the Claimant's favour the Respondent will not exact the whole amount for reasons which I need not mention.
I will substitute the figure agreed by the parties. The appeal is allowed.