A and others v 4V Holdings Ltd and others: 2223816/2024 and 2223821/2024

EMPLOYMENT TRIBUNALS
Case No 2223816/2024, 2223821/2024
Between
A, B, & CClaimant4V Holdings Limited (1) John McKeown (2) John McKeown Clubs Limited (3) PRELIMINARY HEARING IN PUBLICRespondent
Before
Employment Judge EmeryDate 5 November 2025
[1]The second and third respondents are added as parties to this claim[2]The prospective fourth respondent is not added as a party to this claim[3]The first respondent’s response to the claims is not struck out; the first respondent’s application to amend its defence is rejected. The Issues[1]This is a hearing which commenced in May 2025 and was adjourned as part heard. It is listed to determine the following issues:1.1 The claimants’ application to add as parties Mr John McKeown (prospective second respondent), John McKeown Clubs Limited (prospective third respondent) and JW Clubs Limited (prospective fourth respondent). Case Numbers: 2223816/2024 and 2223821/2024 PHCM Order 2 of 19 September 20231.2 Whether the first respondent’s response to the claims should be struck out under Employment Tribunal Rule 38(1)(d) because it has not been actively pursued; and if that response is not struck out, whether the first respondent should be allowed to amend its defence to the claim.[2]The hearing was also listed to determine the claimant’s status: whether they are employees or workers (as they assert) or self-employed (as the respondent asserts). It was not possible to determine this application, which has been further adjourned to 11 and 12 December 2025.[3]Throughout the September hearing, there was a lot of evidence on whether the second and/or the third respondents had significant influence over the business and over the claimants; this was evidence to determine whether any of the prospective respondents should be joined as parties. It is also evidence potentially relevant to the issue of the claimants’ status. Because of the substantial cross-over of evidence, and the risk of giving evidence on the same issues in front of different tribunals, I consider that it is in the interests of justice for me to conduct the hearing on the claimant’s status.[4]For the rest of this judgment unless otherwise indicated, I use the words “the respondents” to refer to the first, second and third respondents, not the prospective fourth respondent. The evidence[5]On the application to add the respondents and prospective fourth respondent, each of the claimants provided witness statements and were cross-examined. The second respondent provided two statements for himself and the third respondent. Mr Then-Bergh, who is the second respondent’s son in law, the sole owner/director of the first respondent, and who works for the third respondent provided a witness statement. Both the respondent’s witnesses were cross-examined. The prospective fourth respondent did not attend or give any reasons for non-attendance.[6]There was a (far too large) bundle of 2224 pages. An additional bundle was provided by the claimants on day 2, to no objection from the respondents. Relevant procedural history[7]The respondents' position is that the tribunal has no jurisdiction to add the prospective respondents. There were 10 respondents listed on the ET1, including the current respondent and all the prospective respondents at this hearing.[8]All bar the first respondent were dismissed from the proceedings at the first case management conference on 9 January 2024. The Order says that all the Orders were “uncontentious and effectively made by consent” (2210). The respondents' case is that 9 respondents were dismissed from the proceedings because “it was determined that they are not relevant” to the claim. Case Numbers: 2223816/2024 and 2223821/2024 PHCM Order 3 of 19 September 2023[9]The claimants argue that they were not legally represented at that hearing, and they were effectively hoodwinked into not opposing that decision. They now say that the Order was made based on falsehoods.[10]On the evening of the first case management hearing the claimant's union representative applied to add back the prospective fourth respondent as a party. the application states that the first respondent was “nominated” by the respondent’s barrister “as the correct respondent” and it was “agreed” that the other respondents could be discharged. But, on legal advice, the claimants are concerned that payments had been made to them by the first and prospective fourth respondents, and that the Clubs were “owned and operated though a complicated structure of companies.” It says that the first respondents accounts are overdue there is “uncertainty about the reliability and legitimacy” of the first respondent.[11]On 12 May 2025 the claimants applied to add the second respondent back as a party. They say that the respondents argue that the prospective fourth respondent is no longer involved, but there is no evidence that the first respondent is the relevant contracting party; they argue that the relevant contracting party is the second respondent, as he has the “requisite control” of the claimants (75). The second respondent argues in his solicitor’s response that the case law points to significant obstacles to vary a case management order; that there is no evidence the second respondent was the relevant contracting party; the application is an attempt to revisit a concluded issue, causing the second respondent hardship and prejudice.[12]On 27 May 2025, the day before the preliminary hearing, the claimants applied to add the third respondent as a party. The reason was, again, “the complexity” if the ownership model. They say that the second respondent’s objection “further obscures” the reality of the relationship, and investigation has found that the third respondent acquired the [Soho] Club in 2018 and has been SEV licence and premises holder since 2019. The claimants say that the respondents have “coordinated” to put liability onto the first respondent, a company which is now facing liquidation.[13]I determined the issue of joinder having regard to the procedural history, and having heard the evidence set out below. The relevant facts The Corporate chronology[14]There is a complex history of the corporate structure of the Sophisticats Clubs. During much of the claimants’ engagement there were three Clubs; the Marylebone Club which has now shut; for much of the relevant period the claimants worked at the Euston and latterly the Soho Club.[15]The corporate structure during the material period was follows: a holding company which held the property lease, and which held the Clubs Sexual Case Numbers: 2223816/2024 and 2223821/2024 PHCM Order 4 of 19 September 2023 Entertainment Venue licence (SEVL) and the Premises Licence. The holding company would sub-lease the property under a Tenancy at Will to an operating company which ran the Club and paid rent to the holding company.[16]Devine Restaurants Limited was the holding company from 2013 and operated the Marylebone Club, and also on occasion paid the claimants; the second respondent accepted that he was a shareholder /director of this company. The company with significant control over Devine Restaurants was The Stratos Club Limited, whose sole director and shareholder was the second respondent.[17]In 2016 Devine Restaurants Limited become the holding company for the Soho Club. The SEVL was transferred to Devine Restaurants Limited on 1 December 2016.[18]In 2019 the third respondent became the Holding Company for the Soho Club. At that time, the person with significant control and sole director was the second respondent. The SEVL transferred to the third respondent on 3 January 2019 where it has remained to date. At the same time the second respondent says that operations transferred to Devine (Brewer Street) Limited (paragraph 6 witness statement); this company was dissolved in June 2019. It is unclear on the evidence which business took over the Club’s operations at this date.[19]The second respondent's case is that he stepped away from the Club’s operations during the covid pandemic. His evidence was that although there was no formal transfer, D&Z Restaurants Limited took over the operation of the Soho Club at this time. D&Z Restaurants Limited’s sole director is Mr ThenBergh; its sole shareholder on incorporation was the second respondent’s partner. However, there is no reference to D&Z Restaurants Limited having any involvement in the Clubs, apart from paying the claimants in 2022.[20]In February 2021, ownership of the third respondent transferred from the second respondent to Audrey Brook; Ms Brook became the sole shareholder, and John Whyte became a co-director. Ms Brook ceased to be a shareholder in February 2023, significant control over the third respondent transferred to Mr Wythe.[21]The respondents say that D&Z Restaurants Limited ceased to be the operating company for the Soho Club; the date this happened is not clear from any documents. The pay records show that D&Z Restaurants Limited were paying the claimants until November 2022 (1138).[22]On 30 June 2021 the prospective fourth respondent was incorporated. Its sole director/shareholder was John Wythe. On 1 January 2022 the third and the prospective fourth respondent entered into a tenancy at will for the Soho Club premises.[23]The second respondent’s evidence at the hearing was that the prospective fourth respondent took over the operations of the Club in June 2021; however, there is a gap in documentation given the date of incorporation and the date of the tenancy. Also, the evidence suggests that the prospective fourth respondent did not start paying the claimants until November 2022 (1639). The Case Numbers: 2223816/2024 and 2223821/2024 PHCM Order 5 of 19 September 2023 second respondent accepted that he “gets confused”; that the date of the prospective fourth respondent’s first payment to the claimants is the date the prospective fourth respondent took over, that D&Z ceased to operate this club from this date.[24]The respondents say that the first respondent took operational control of the Soho Club around February 2024, evidenced by a tenancy at will between the third and first respondents (490).[25]A few weeks later, on 20 February 2024, an email expressed to be from Mr Then-Bergh “JW Clubs Ltd” was sent to staff (not including the claimants) at the Soho Club informing them of a forthcoming TUPE transfer from the prospective fourth respondent to the first respondent (2121). The claimants do not accept that a valid TUPE transfer took place at this time, this being the only document provided to evidence this.[26]On 29 May 2025 Mr Wythe ceased to be a director and shareholder of the third respondent and the second respondent regained control of this company.[27]The second respondent’s witness statement sets out the reason for Ms Brook and Mr Wythe’s temporary ownership of the third respondent: companies he owned were indebted to a company owned by Ms Brook; Mr Wythe worked for Ms Brook. The change in ownership was a guarantee/collateral for the loans. Once repaid, the third respondent’s ownership transferred back to the second respondent.[28]Companies House records show that Mr Wythe became a director and/or shareholder of another of the second respondent’s companies and two companies owned by Mr Then-Bergh during the same period.[29]The respondents case is that the third respondent took back control and became the holding company and operating company of the Soho Club, the respondents say from 17 March 2025. The second respondent's evidence is that since that date he has again become heavily involved in the Clubs’ operations.[30]In his evidence, the second respondent put the interrelationship between the holding and operating companies like this: the operating company “will get profits and pay the profit to the holding company. [The operating company’s licence] is the right to occupy for a limited period of time”; he said that “my modus is to rent and take the profit.” Evidence of operational control[31]The respondents’ case the second respondent was owner of the holding company and was heavily involved in the Clubs up to 2021, but he was never the contracting party with the claimants. They say that in mid-2021 he stepped back from the Clubs’ operations; the Clubs were for a significant period licenced to and operated by third-party companies including the prospective fourth respondent and its owner Mr John Whyte, and by the first respondent under the control of Mr Then-Bergh. Case Numbers: 2223816/2024 and 2223821/2024 PHCM Order 6 of 19 September 2023[32]The claimants’ case is that notwithstanding the various legal business which over time leased the premises and operated the Clubs, the second respondent was at all times the SEVL and Premises Licence holder, he ran the business, the Club Managers reported to him, he oversaw and enforced the Rules, he was the controlling influence over their terms of engagement. They say that the second respondent directed them, set their rate of pay; he was the “relevant contracting party” throughout the time they worked at the Clubs.[33]In his evidence, the second respondent accepted that the SEVL holder is required to set up a Code of Conduct for performers, that the standard conditions on the SEVL includes obligations between the licence holder and performers. There was an obligation for either the licence holder or a named responsible person to be present during performances; that it was for the Licence holder to set up a Code of Conduct setting out the rules and obligations between the licence holder and performers. He accepted that this meant that there were ‘obligations’ between the third respondent and the performers from 2019 throughout their engagements.[34]The second respondent disputed that this meant he or the third respondent had control over the businesses as a consequence of the SEVL. He accepted that the requirements of the SEVL meant that its holder was required to have strict policies relating to performers, “breach of which will be treated very seriously”, that there are “regular meetings with the performers to ensure our rules are being complied with ... and all policies are followed”, that all performers are “required to sign an agreement with us setting out our strict rules ... " (the second respondent’s witness statement to the council seeking a premises licence and transfer of the SEVL to Devine Restaurants Limited (111-117).[35]The claimants point to a further witness statement dated 5 April 2019 in legal proceedings as evidence of the type of control the second respondent had in the Clubs. The second respondent described himself as the “owner and operator” of the Clubs; that he took compliance “very seriously” having “comprehensive and robust” procedures to ensure performer’s welfare and ensure licence compliance. The second respondent denies that this meant he in some way controlled the Clubs’ day to day operations; he says that he was acting as representative of the third respondent.[36]In his evidence the second respondent accepted that until early 2020 he would involve himself in operational issues including holding meetings with the dancers to inform them of any new rules. He said that he was “very engaged” with dayto-day operations until D&Z Restaurants Limited took over the operations.[37]The respondents say that after he stepped down from day-to-day operational control in early 2020, D&Z Restaurants Limited (Mr Then-Bergh), then DW Restaurants Limited (Mr Whyte), then the first respondent (Mr Then-Bergh) had operational control over the Clubs.[38]The claimants say that the second respondent’s operational role continued during and after the covid pandemic. Claimant A gave detailed evidence of her Case Numbers: 2223816/2024 and 2223821/2024 PHCM Order 7 of 19 September 2023 discussions with the second respondent during periods in 2020/21 when the Club was able to reopen. Her evidence was that the second respondent was finding “innovative” ways to keep the Club open, including running burlesque and fire eating shows. She says she was asked to work by Ioana doing promotional work; the texts to her said “John asked me to ask you”. She says that she chatted to the second respondent about this work, and about the plans for the Soho Club.[39]The claimants accept that the from 2021 onwards second respondent was less present in the Clubs, being involved in opening a restaurant after that premises had a Strip Club licence rejected. They argue that throughout their engagements the second respondent was the controlling influence. As said by Claimant A, he “was always my boss. I was never told of any changes or a different owner.”[40]Claimant B did not work and was not paid during the pandemic. When she restarted work in March 2022, she says that she was not aware that the fourth respondent started operating the business “As far as I was aware when contacted by [the Club Manager], Ioana, to go back, that [the second respondent] is the owner. She told me that John is going to reopen the club and do I want to go back.[41]The claimants’ evidence of their relationship with the second respondent was as follows. Throughout the whole of their engagements, all claimants said they “knew” the second respondent “was the boss” (Claimant A’s words) - “I know the boss was [the second respondent], no one told us otherwise.” Claimant A says that she met the second respondent at her audition, he described himself as “the boss”. The second respondent could not recollect what he said when they met; however, he did not deny that he would have made such a comment.[42]The claimants argue that from 2020 onwards to the end of their engagements, the second respondent continued to instruct them on their work, either personally or through the Club Manager. The second respondent denied this: he accepted that they are “extensive instructions” on how the claimants should carry out their work, but he said he did not “personally instruct them” - he argued that the third respondent had to specify the rules set by the licence, that he did not personally decide the rules.[43]Claimant A says that the second respondent remained the boss of the business throughout her association with Sophisticats, that when she moved from the Marylebone to the Euston Club in 2020, they interacted much more frequently, Claimant A characterising these interactions as her seeking assistance “from the boss”.[44]The respondents characterise these interactions differently, that the second respondent from 2020/21 was not actively involved in the Clubs at this time, but was instead “helping a friend” by passing on messages, rather than resolving any issues. Case Numbers: 2223816/2024 and 2223821/2024 PHCM Order 8 of 19 September 2023[45]The claimant’s say that there is documentary evidence of the second respondent being in control of the Soho Club in 2024 – i.e. a year before he says he took back operational control. The council’s licencing sub-committee minutes of 5 March 2025 say that in his evidence the second respondent mentioned an incident in March 2024, how he addressed a customer complaint about overcharging, how he “stood his ground”; he addressed how he hired dancers; he addressed how he tried to meet the performers regularly.[46]In his evidence the second respondent denied that his evidence to the council showed his control over performers and payments to them. He said that he “pushed” the Club’s operators to make a decision about this complaint, he did not decide it himself, that he “made representations” to the operating company “to make sure” this issue was addressed. He said the third respondent was ultimately responsible for the SEV and Premises licences and so asked for this issue to be dealt with.[47]The claimants argue that control of the SEVL is evidence of control over the Club’s operations; the second respondent denies this, his evidence was that the companies have been granted successive SEVLs, not him “it's easy to conflate the company and the person”. He accepted that the SEV licence “must be controlled by a fit and proper person, while being held by the company”. He accepted in evidence that he was the fit and proper person with personal responsibility for the licence - his witness statement says differently, paragraph 11 says he did not have personal responsibility for the licence. He argued that all actions were on behalf of the company: for example, if he was to resign from the third respondent, the licence would continue.[48]The second respondent's witness statement says that in any event he did not have responsibility for running the Clubs or managing the performers, this was done by a ‘Designated Premises Supervisor’. He accepted that the DPS was the Club manager employed by the operating company; in Soho the DPS was Ioana.[49]The claimants dispute that Mr Then-Bergh and D&Z Restaurants Limited took over operational control over the Clubs. A said she was not aware of Mr ThenBergh having any control over the business. She accepted that he worked in the office during the day but did not accept that he had any control or influence at any time. She said that the second respondent remained the boss and held meetings during that period.[50]Similarly with Mr Wythe. The second respondent’s first statement says that Mr Wythe / the proposed fourth respondent assumed operational control but left the running of the Club “entirely” in the hands of Ioana.[51]The respondents say that that Ioana would report to and was supervised by Mr Wythe and that evidence to “John” in messages after early 2022 would have been to Mr Wythe. For example, in July 2022 “the meeting will be held by John ... presence is compulsory”. The respondents say that this meeting was run by Mr Wythe. The claimants say that Mr Wythe was not present; A said, “he Case Numbers: 2223816/2024 and 2223821/2024 PHCM Order 9 of 19 September 2023 has never been in a meeting with dancers.” They say that the second respondent attended some but not all the dancer’s meetings from 2022 onwards.[52]Another message from the House Mother to dancers dated 30 October 2022 refers to the dancer’s dress code “This is not allowed and this comes from John”; another is a message to C about not being paid on 22 September 2023, the house mother saying “I think John will come into tonight so we will ask him”.[53]The second respondent denied that these and similar messages refer to him, although he accepted that he was going to the Clubs “very occasionally’ during this period. The second respondent said that Mr Wythe would have set rules for dancers, dealt with pay issues, notwithstanding a lack of documentation to show the prospective fourth respondent of Mr Wythe’s involvement in business operations.[54]In his evidence the second respondent also said the following about this period: "I am keeping in contact with John – so I am quite closely involved and meeting him regularly. But day to day operations was left with Ioana.”[55]The second respondent also said the following when it was suggested that that all the claimants believed the reference to “John: in messages was to him: “Fundamentally in some ways I was in control at all times”.[56]While the respondents' case is that the prospective fourth respondent took over operational control of the Soho Club in in mid-2022, in his evidence the second respondent said that “by 2023”, he had "effectively relinquished control of Soho”. In re-examination he said that by 2022 he was less engaged in the business, but he was more engaged in 2022 than 2023, that he “attempted to be a figurehead” in 2022 but was “very distant from the operation” in 2023.[57]The claimants say that Mr Wythe would pop into the Club and say hello, that he was polite, but they had little interaction with him. They say that Mr Wythe never sought to implement any rules, it was never suggested that he was now in control. A says that she was told by Ioana that he was a “silent investor”. They dispute he had any control over the running of the Club. They dispute that Ioana was in control of the Club’s operations, A says that he did not issue instructions or appear to take an active interest in their operations. They say that throughout the prospective fourth respondent’s ownership, the second respondent remained in effective control over the operations and remained their and Ioana’s boss.[58]In evidence it emerged that Mr Wythe’s background is in banking. At the date of the hearing, he was aged 77 and according to the respondents in such poor health he was unable to provide a witness statement or give evidence by cvp. Mr Wythe had no prior involvement in sexual entertainment venues or any similar business.[59]The second respondent accepts that he did some work for the Clubs during this period:
“maybe 2-3 occasions I was asked to give a pep talk [to performers] by John Wythe, and I was happy to do so”
. He says that he had known a lot of the Club’s personnel for a long time and had been in the business a long time “So I Case Numbers: 2223816/2024 and 2223821/2024 PHCM Order 10 of 19 September 2023 have respect in the business. I gave advice .... but I was not instructing or making decisions at this time.[60]The claimants deny that the first respondent and Mr Then-Bergh had any material involvement in the Clubs from early 2024. They accept that the first respondent paid them from March 2024. But they say that there is very little other evidence of operational control: they say that the evidence provided by the respondents to prove the first respondent’s control is not good enough. The documents show only that the first respondent purchased office supplies, chocolate, and cleaning supplies during this period, there is no evidence that it was in control of the Club’s operations.[61]The second respondent’s evidence was that currently Mr Then-Bergh is involved in other projects, but he also continues to work at the Club “he does an awful lot of admin and bill paying etc.”. The claimants say that this has been the extent of Mr Then-Bergh's involvement in the Club throughout their engagements.[62]The claimants rely in pay-related issues to show the second respondent’s continued control over the disputed period. There are several WhatsApp messages about pay issues between the claimants and the second respondent. The claimants say these messages speak for themselves; they show the second respondent’s direct involvement in banking and pay issues and senior managerial decisions.[63]The messages include the following: 63.1 Club House Mother Sarah saying on 22 September 2023 in response to a ‘no money’ message:
“I think John will come into tonight so will ask him”
. The second respondent denied that this referred to him. 63.2 Following a message from A to the second respondent on 1 February 2024 saying she was now overdrawn and “need my money by tomorrow” the second respondent asks “how much are you owed”; “we only just got account open again, so no promises”; “Will get more money provided they don't close our account again”; we have lots of problems with non-auth transactions. ... It's so frustrating...”; “if it's not there today it will be 1st thing tomorrow”. 63.3 6, 22 & 26 February 2024 - Ioana to C:
“I asked John and he said he’ll start making payments tomorrow”; “I spoke to John and he said he made some payments today and yesterday ... he is having problems with his accounts...”; “I wrote to John, he said he’d make some payments today.” 63.4 On 4 & 5 March 2024: following further non-payment the second respondent write to A: “... I know you know me. We will get through.”; “Yeah I know trying again tomorrow”; “I will see it go out. Hopefully by lunchtime”; “if [payment] goes ok we will do the next week Wednesday”; “Wish I could do more...”; “Money went out ... ok”; “... let’s see how we do tomorrow”
. Case Numbers: 2223816/2024 and 2223821/2024 PHCM Order 11 of 19 September 2023 63.5 11 & 15 March 2024: Ioana to C:
“I asked Dan and John...”; “John called me and said that the money ... would be processed today. And money he will try to do the next few weeks .... He was on the phone with the bank, they keep blocking his account...”
[64]Mr Then-Bergh denied that the second respondent had access to the accounts during this period – he said he was responsible for paying the claimants. He described his role as Head of Operations for all the businesses. He also denied knowing that the claimants were in contact with the second respondent. He said that they probably contacted the second respondent after he had “ignored” their messages (but there is no evidence of any messages to Mr Then-Bergh from the claimants about pay). He also denied that the second respondent had contacted him about claimant A’s texts “he did not contact me at this time about this issue or these texts”; he said that he and the second respondent “may have spoken once or twice [over this period], and payments may have been brought up, but not the particulars of any payments[65]The claimant’s bank statements show that in February 2024 they were paid sums owning to them by the prospective fourth respondent; in March 2024 they were paid by the first respondent (1155-56). The second respondent’s evidence was that he did not have access to the prospective fourth respondent’s bank account, that Ioana’s messages do not refer to him, that his messages with A was him “trying to reassure A, and not thinking about the way I phrased the messages.” He said that he was “talking rhetorically, not literally” that he was “talking to someone else” to find out about the payments; he said, “this is saying I would have to seek to persuade people”. He accepted he did not say he was not in control of the process. He accepted that he said “we” but said this was in his role as director of the third respondent that he was “making sure the licence stayed intact, so I was involved” (1176-1178).[66]The second respondent says he “has no memory whatsoever” of interacting with Ioana over C’s texts, but that these can’t be a reference to him: “This is not me. [Ioana] did not ask me. She would have asked the other John. She did not ask me categorically.[67]He accepted he was “still involved with Sophisticats” during this period, but that he “was not in charge or sole charge”, that his involvement was because of his interest in the third respondent, the leasehold company, “and I still cared to a degree”.[68]He denied this is contrary to his first witness statement (paragraph 13) which says that he was not involved in the club, saying that his involvement was as director of the third respondent “and my concern about the operation”.[69]The claimants do not accept that he was ‘doing them a favour’. A said she was not told this when she texted him, that he would always ask her “to tell the girls” they would be paid shortly.[70]A says that she was never aware of the prospective fourth respondent; “there were lots of companies being opened and closed, and bank accounts, but we Case Numbers: 2223816/2024 and 2223821/2024 PHCM Order 12 of 19 September 2023 were never told that [the second respondent] is not the boss, the communication was with him the same way as always...”.[71]The claimants also point to the second respondent's involvement in disciplinary related issues. One text dated 19 March 2022 from a Club manager to performers refers to fines if a shift is cancelled without a valid reason, to dancer's rules; “these are decisions made by John and the management.” In his answer the second respondent denied that this text referred to him - “there's more than one John”.[72]However, at this date, the prospective fourth respondent and Mr Wythe were not, according to the second respondent’s evidence, in operational control of the Clubs – according to his evidence D&Z Restaurants Limited was.[73]There are other similar messages – for example on 31 August 2022 an invitation was sent requiring their “mandatory” attendance for a “meeting with management/John”. The second respondent’s evidence was that he was “invited” to this meeting by Ioana, that notwithstanding the meeting was “with” him and management, the invitation “does not say I am holding” the meeting, “just that I will attend.”[74]There are a series of messages between A and the second respondent about conduct at the Club. One series, on 17 November 2022 talks about “unacceptable” behaviour by a colleague, and details this conduct, it ends saying that “After the loyalty I have showed to you and the Club over may years...” In response it is agreed that he and A will meet up to discuss this issue. Another series of messages on 8 February 2023 talks about how she is being treated differently by a manager – reaching a point where she had to cancel a shift. She asks to talk in person, to which the second respondent says “... I hear you, I will be in tonight.” The second respondent’s evidence was that he assisted with these issues because A “was reaching out as she was distressed ... I am trying to help her out as a friend.”[75]On 4 July 2023 claimant A was suspended from her role for allegedly shouting at a member of the security team. She texted the second respondent with a copy of the suspension text: the second respondent replies saying “Ok hun, I sort it.” Claimant A responds with further complaints about her treatment and about rumours being spread. The second respondent's messages include “Hi Hun, I am working on it.” He says he has seen the cctv. When claimant A is then invited to a meeting, and suggests a decision has been made in advance, the second respondent replies “Nah”. The second respondent's evidence was that he was being “supportive as a friend”, that he did not resolve the issue, that A and Ioana resolved the issue.[76]Another message from claimant A dated 8 March 2024 refers to a “rumour that you may close the club all August for refurbishing.” The second respondent replies “Only a couple weeks if we do. Needs a redecoration!” the second respondent denied that this shows he had control over the Club’s operations at this time, that he had finished repaying the debt and was “thinking about” the future, he was “thinking out loud” in his response. Case Numbers: 2223816/2024 and 2223821/2024 PHCM Order 13 of 19 September 2023 The pay records[77]The respondents' point to the sequence of company restructures and payments to the claimants which show that the claimants were variously engaged or paid by the following companies, which is evidence that they were not controlled by the second or third respondents:77.1 January 2022: paid by D&T Restaurants Limited and D&Z Restaurants Limited: both of which the sole director is Mr Then-Bergh, and the main shareholder the second respondent’s then partner.77.2 August 2022: the second respondent and D&Z Restaurants Limited;77.3 November 2022: D&Z Restaurants Limited and the prospective fourth respondent;77.4 December 2022 to May 2023: John Wythe (one payment), and the prospective fourth respondent;77.5 3 times in June 2023 and once in July 2023: the third respondent;77.6 July 2023 – February 2024 – the prospective fourth respondent;77.7 March 2024 to dates of claims: the first respondent.[78]The respondents characterise this as evidence that in from November 2022 to February 2024 the main payee was the prospective fourth respondent, and thereafter the first respondent: evidence that during this period these two companies were in operational control of the Clubs and the contractual relationship with the claimants.[79]The respondents say that the payments from the third respondent is “stepping in to ensure you are paid”, when other company bank accounts were blocked, that this is not evidence of control.[80]The claimants accept they were paid by different companies at different times, but that this did not change the nature of the relationship, which was always with the second respondent. Claimant A’s evidence was that there were always periods when because of the nature of the business a bank would block the account, that the second respondent would tell her this in messages; that they would often then use a different company to pay them “I did not question this as long as I was paid”. Application to strike-out R1’s defence[81]Mr Then-Bergh's evidence was that he did not engage with the tribunal process or attend the last hearing on behalf of the first respondent because of advice he had received from the insolvency practitioner. He says he was not aware he needed to provide evidence or to comply with Orders after his solicitors came off Case Numbers: 2223816/2024 and 2223821/2024 PHCM Order 14 of 19 September 2023 the record in May 2025. He accepts that he did not provide a bundle for the May hearing as the Order says, that he did not respond to emails, that he was “advised” not to do so, he was told that “it is a bad idea” to incur costs. He says that he did not realise that he did not have to be represented to participate in the process. He says he did not know he was required to be at the May 2025 hearing. He says he would have received the ET correspondence warning him of the consequence of not participating (30 May email page 86) but not until a later date.[82]He accepts that his solicitors made an application to amend the first respondent’s defence on 7 April 2024 (64) and that when they came off the record they named him and the second respondent as relevant contacts for the first respondent – he denied that this showed the second respondent's involvement in the first respondent. The relevant legal principles – joinder[83]The Employment Tribunal Procedure Rules 2024: Rule 30 – Case management Orders: (1) ... the Tribunal may, on its own initiative or on the application of a party, make a case management order. ... (3) A case management order may vary, suspend or set aside an earlier case management order where that is necessary in the interests of justice, and in particular where a party affected by the earlier order did not have a reasonable opportunity to make representations before it was made[84]The Employment Tribunal Procedure Rules 2024: Rule 35 - Addition, substitution and removal of parties(1) The Tribunal may on its own initiative, or on the application of a party or any other person wishing to become a party, add any person as a party, by way of substitution or otherwise, if it appears that there are issues between that person and any of the existing parties falling within the jurisdiction of the Tribunal which it is in the interests of justice to have determined in the proceedings(2) The Tribunal may on its own initiative, or on the application of a party, remove any party that appears to have been wrongly included.[85]The Presidential guidance (General Case Management) Guidance Note 1, paragraph 16 states: "These are some of the circumstances which give rise to addition of parties: 16.1 Where the claimant does not know, possibly by reason of a business transfer situation, who is the correct employer to be made respondent to the claim.” Case Numbers: 2223816/2024 and 2223821/2024 PHCM Order 15 of 19 September 2023[86]Cocking v Sandhurst (Stationers) Ltd [1974] ICR 650: regard should be had to all the circumstances of the case. It suggested the following test should be followed:[1]Does the claim form (ET1) comply with what is now Rule 10(1); if yes are the claims made in time; if yes[2]The tribunal has the discretion to allow the proposed amendment;[3]In deciding whether to exercise their discretion to allow an amendment, the tribunal should only do so if they are satisfied that the claimants made a genuine mistake, and the amendment does not cause reasonable doubt as to the identity of the respondent.[4]In deciding whether to exercise their discretion to allow an amendment, the tribunal should have regard to all the circumstances of the case. They should consider any injustice or hardship which may be caused to any of the parties, including those proposed to be added, if the proposed amendment were allowed or refused.' 87. British Newspaper Printing Corpn (North) Ltd v Kelly [1989] IRLR 222, CA): Endorsed the injustice/hardship test set out in Cocking; also that, as there are no statutory time limits for applying for leave to amend, tribunals ought not to refuse leave simply on grounds of delay. 88. Gillick v BP Chemicals Ltd [1993] IRLR 437 EAT: Questions of delay are merely matters to be taken into account by the tribunal in the exercise of its discretion. Also, ''The presence or absence of a connection between the respondents may well be relevant in considering whether or not a genuine mistake has been made, and whether the [employment] tribunal should exercise its discretion to allow the mistake to be corrected, but such considerations are relevant, if at all, as matters to be taken into account in exercising the discretion, rather than as limitations on the circumstances in which the discretion can be exercised'. Relevant legal principles – strike-out of defence 89. The Employment Tribunal Procedure Rules 2024: Rule 38 – Striking out(1) The Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim, response or reply on any of the following grounds— .... (d) that it has not been actively pursued. 90. Hasan v Tesco Stores Ltd (2016) UKEAT/0098/16: there is a two-stage approach: (1) it must consider whether a ground for strike out is satisfied;(2) it must consider whether it should exercise its discretion to strike out. 91. Evans v Commissioner of Police of the Metropolis [1991] ICR 151: Delay which is intentional, disrespectful or abusive; delay that is inordinate and inexcusable Case Numbers: 2223816/2024 and 2223821/2024 PHCM Order 16 of 19 September 2023 and which gives rise to a substantial risk that a fair hearing is impossible, or which is likely to cause serious prejudice to the other party. 92. Kaur v Sun Mark Ltd [2023] EAT: In exercising its discretion the Tribunal should assess if strike out is an appropriate and proportionate response consistent with the overriding objective. Closing arguments 93. All parties made closing arguments; their arguments are addressed below in the Conclusions section. Conclusions on the evidence and the law 94. The starting point is that the claimants ET1 claim form named all prospective respondents. It was based on representations made by the respondents’ lawyer at that hearing (who was acting on instructions but who was not instructed by all the then respondents) that the prospective respondents were dismissed from the proceedings. 95. The claimant says that the respondents inaccurately represented the position at the January 2025 Case Management Hearing