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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Ratnam & Co v Varu [1997] UKEAT 695_96_2807 (28 July 1997) URL: http://www.bailii.org/uk/cases/UKEAT/1997/695_96_2807.html Cite as: [1997] UKEAT 695_96_2807

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APPEARANCES

 

For the Appellants	MR R I K RATNAM (Solicitor)
For the Respondent	NO ATTENDANCE BY OR REPRESENTATION ON BEHALF OF THE RESPONDENT


 


MR JUSTICE KIRKWOOD: This is an appeal by an employer from part of the decision of an Industrial Tribunal sitting at London (North) on 15th March 1996. The tribunal gave its extended reasons on 31st May 1996. The tribunal found that the respondent to the application, the appellant before us, a firm of solicitors, was in breach of its contract to the applicant and owed the applicant, Miss Varu, £787.42. The claim adjudicated on by the tribunal related to salary due from 1st July 1995 to 3rd August 1995.

The employer appeals against that decision.

At a preliminary hearing of the appeal on 14th January 1997, the employer was allowed to proceed with the appeal in respect of the period only from 27th July 1995, provided also that within 14 days it paid to Miss Varu £500 in respect of the period up to 26th July 1995.

Miss Varu was employed by the appellant under a contract for fixed term from 26th October 1994. It was a Law Society standard training contract. Difference arose between Mr Ratnam, the solicitor, who is the employer and appellant and Miss Varu. On 26th June 1995, Mr Ratnam applied to the Law Society for the contract to be terminated. On 13th July 1995, he suspended Miss Varu until further notice in respect of some alleged disciplinary matters. On 3rd August 1995 Miss Varu asked for the contract to be determined by mutual agreement and the Law Society agreed to that course. The contract accordingly ended on that date as did Miss Varu's financial entitlement under it.

Mr Ratnam did not attend the Industrial Tribunal. That was because he was unwell, as a medical certificate showed. The tribunal refused his application for an adjournment and heard the case in his absence. In its extended reasons, the tribunal explained why it did that. In light of the order made on the preliminary hearing, no appeal is now open to Mr Ratnam in that regard.

Mr Ratnam raises two points in support of his appeal against the order so far as it relates to the week from 27th July 1995 to 3rd August 1995. He says that Miss Varu began work under a different training contract with a different firm of solicitors on 27th July 1995. That is a finding of fact that the tribunal in fact made. From that it follows, so Mr Ratnam submits, first of all that Miss Varu herself was in breach the training contract, in that she undertook a further contract at a time before she was released from her contract of 26th October 1994; and secondly, and alternatively, that since Miss Varu had employment from 27th July 1995 and was inferentially at least in receipt of salary under it, she suffered no loss because such salary must be offset against money due to her for that period under the contract of October 1994. The loss was mitigated.

The tribunal did not address either point. Perhaps that was because Mr Ratnam was not there to make them. The points are clearly raised in paragraph 4 of the grounds of appeal. Miss Varu has indicated that she does intend appear before the Employment Appeal Tribunal today, and she has not done so. She has not been here therefore to respond to the argument put forward on those points by Mr Ratnam.

We are quite satisfied that the appellant's points, in the alternative, are good ones. The finding of the Industrial Tribunal as to the period from 27th July 1995 when Miss Varu began other work cannot stand.

We have considered the consequence of that conclusion. Plainly this is not a case in which it would be appropriate in any sense to remit the case, and all that is left is to consider the proper amount of the award in the light of our decision that the appellant succeeds in relation to the period from 27th July 1995.

It seems to us that on a proper calculation, and taking as a starting point the net salary of Miss Varu which was found by the tribunal to be £691.65 a month, it is appropriate to ascertain an annual salary from that figure and then to consider what the daily salary amounts to over the 26 days of July 1995 for which the award stands.

The result of that calculation is that the proper figure is £591.22 as we calculate it. We are aware that in the order made on a preliminary hearing, Morison J ordered the appellant to pay the respondent the sum of £500.00 in respect of unpaid salary up to 26th July 1995 within 14 days. We recognise that it is arguable that that order was intended to be in full satisfaction of the claim for that period, but considering the approach commonly taken on preliminary hearings, and considering the wording of the order and doing our best to meet the justice of this case, we have taken the view that that should be regarded as a payment on account of salary up until 26th July 1995, so that there remains a balance due from the appellant to the respondent of £91.22 only.

The appeal will be allowed save as to the extent of a balance due of £91.22.

Mr Ratnam has asked us to consider making an order for costs against Miss Varu. She is not obliged to attend at the hearing of the appeal. She made a submission in writing by way of response to the Notice of Appeal. It cannot be said that her failure to attend today to support her opposition to the appeal is meretricious; and it cannot be said that she has behaved in respect of this appeal in a way that should attract a costs penalty.

Mr Ratnam is concerned that following the preliminary hearing, Miss Varu started County Court proceedings, as we understand it for the whole amount, notwithstanding that (a) the Industrial Tribunal and by then the Employment Appeal Tribunal was seized of the case; and (b) that the employer had been given 14 days from 14th January 1997 to pay the sum of £500.00. Mr Ratnam is of the view that it was a complete waste of money starting those County Court proceedings and that the conduct of Miss Varu in doing that should be visited with an order for costs.

It is, however, our understanding that the proper forum for such an argument as to costs is the County Court. Mr Ratnam will have to consider what application he can properly make to the County Court in respect of those proceedings, which, are said still to be pending and in respect of any costs in relation of them. It should certainly be drawn to the attention of the County Court that this matter has been heard and determined in the jurisdiction of an Industrial Tribunal and the Employment Appeal Tribunal, and as far as we can understand, there is no concurrent jurisdiction that the County Court could possibly exercise in respect of the question of liability.