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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Sergiev v. Filsoft Entertainment Ltd [2000] UKEAT 616_00_1610 (16 October 2000) URL: http://www.bailii.org/uk/cases/UKEAT/2000/616_00_1610.html Cite as: [2000] UKEAT 616_00_1610, [2000] UKEAT 616__1610

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APPEARANCES

 

For the Appellant	THE APPELLANT NEITHER PRESENT NOR REPRESENTED


 


JUDGE REID QC: This is an ex parte preliminary hearing on an appeal by Mr Emil Sergiev against the dismissal of his claim for "three month's money in lieu of notice" by the Employment Tribunal sitting at London (South), that decision, in summary reasoned form, having been given on 2nd March 2000. Extended reasons were given on 28th April 2000 following an application for a review and the dismissal of the application. The Notice of Appeal was in fact lodged on 7th April 2000 before the extended reasons had been promulgated.

1. The position was that Mr Sergiev was employed FilSoft Entertainment Ltd under terms of a letter dated 18th February 1999, which included the sentence:

"The termination period of your contract is 3 month' notice for either side."

2. Mr Sergiev often experienced difficulties receiving his salary. At the time that he parted company with FilSoft, he was in fact unpaid for his last month's salary for work he had done in August, and he claimed in respect of that.
3. Mr Sergiev left his employment at the end of August 1999, as I say with the salary unpaid, and he left because he could no longer gain access to the office. He left without having received any notice.
4. No issue arises so far as the unpaid wages are concerned, which the tribunal awarded him, but Mr Sergiev says that he is entitled to pay in lieu of the three month's notice that he should have had when his employment was terminated by his inability to gain access to the office.
5. Mr Sergiev in fact commenced fresh employment at the beginning of September on the findings of fact at the same or a slightly higher salary than he had been entitled to from the respondents. He had therefore mitigated his loss. He was not out of pocket by reason of the failure by the respondent to pay him three month's notice or to give him three month's notice.
6. What Mr Sergiev asserts is that he had lost bonuses, royalties, holiday pay and three month's pay in lieu on notice so he is severely out of pocket.
7. There is on the findings of fact no evidence that there would have been any bonuses payable. On his contract he would have been entitled to a bonus (unspecified) in December. There is a statement in the findings of fact that he did not pursue any claim for accrued holiday pay. There is no evidence on the findings of fact that he lost anything in the way of royalties or that he was entitled to any royalties.
8. The position therefore is that Mr Sergiev did not get three month's notice. Had he had that three month's notice he would not have been able to take the new job which he took at the beginning of September 1999. The result of his taking the new job is that, on the findings of fact, he earned as much or slightly more as he would have done had he been required to work his three month's notice.
9. In those circumstances, it seems to us, that there is no evidence of any loss and that the tribunal was correct in saying that his claim for damages for breach of contract for any substantive sum failed. It does not, in these circumstances, appear to us appropriate to direct that the matter should go for a full hearing and the appeal will therefore be dismissed.