Hall v London Lions Basketball Club (UK) Ltd

In assessing damages for wrongful dismissal, the innocent employee is to be placed in the contractual position that would have existed had the employer performed in the least onerous lawful manner. The relevant termination rights are those available to the employer, not a contractual right available only to the employee. Where a fixed-term contract gives the employer no right to terminate early, damages may extend to the unexpired term, subject to mitigation.

On termination, holiday pay under the Working Time Regulations is calculated by multiplying accrued weeks of leave by a week's pay. A worker's part-time hours do not justify a further reduction to a weekly pay figure already calculated under the statutory scheme.

The claimant, a professional basketball player employed on a fixed-term seasonal contract, resigned with immediate effect after the respondent failed to pay contractual wages and benefits. The Employment Tribunal upheld his claims for constructive wrongful dismissal and unpaid holiday pay, but limited wrongful-dismissal damages to 14 days by reference to a clause permitting the claimant to terminate after notice of a serious breach. It also halved accrued holiday pay because he worked an average of 20 hours a week.

The claimant appealed only those two aspects of quantification. The central issues were the correct contractual basis for assessing damages following acceptance of an employer's repudiation, and whether holiday pay could be pro-rated by reference to part-time hours.

1. Appeal allowed. The Employment Tribunal erred in limiting damages for wrongful dismissal to 14 days. It had found that the claimant accepted the respondent's repudiatory breach by resigning immediately at common law. Clause 24 gave a termination right to the claimant, not to the respondent, and did not bear on the respondent's least-onerous lawful method of performance.

2. The correct inquiry was what entitlement the claimant lost through being deprived of continued employment for the remainder of the fixed term, allowing for any termination power actually available to the respondent and for mitigation. The contract contained no general employer right to terminate on notice, and no relevant serious or persistent breach by the claimant had been alleged. The assessment of wrongful-dismissal damages was remitted because the Tribunal had made no findings on mitigation and alternative earnings.

3. The Tribunal also erred by halving holiday pay. Under Regulations 13, 13A and 16 of the Working Time Regulations, the payment due for accrued untaken leave was the agreed 2.4 weeks multiplied by the claimant's weekly pay. His average 20-hour working week did not permit a further pro-rata deduction. Applying Harpur Trust v Brazel, the EAT substituted an award of twice the unreduced holiday-pay sum awarded below, with the 15% uplift applied to that corrected figure.

• Employment Appeal Tribunal: allowed the claimant's appeal against the quantification parts of the Employment Tribunal's decision. Wrongful-dismissal damages were remitted; the holiday-pay award was substituted.
• Employment Tribunal, East London: following a hearing on 14 and 15 February 2019, upheld the claimant's claims, including constructive wrongful dismissal and unpaid holiday pay, and dismissed the respondent's counterclaim. It awarded 14 days' wrongful-dismissal loss and reduced holiday pay by half.