Mr M Breit and Mr R Hartley v Knight Frank LLP and Others: 2301902/2024
JUDGMENT
The claims are struck out.REASONS
[1]In this matter the claimants complain of unlawful deductions from wages & unpaid holiday pay, a failure to inform and consult ahead of a TUPE transfer, a failure relating to the election of employee representatives, wrongful and unfair dismissal. There had also originally been another claimant, Ms Esbrand, but her claim was dismissed on withdrawal on the same day as this hearing.[2]This matter was listed for a public preliminary hearing to commence at 10am. The purpose of the hearing was to consider applications by the first, second and third respondents for the claims by the claimants to be dismissed. Written submissions in support of the application had been made for the first and third respondents and had been copied to the claimants in advance of the hearing. The first claimant represents both himself and the second claimant.[3]On the day before hearing at 17.36 the parties were notified by the tribunal by email that there was difficulty with assigning a judge to hear the claim and that there was likely to be some delay and that it was ‘possible’ that the case may need to be postponed. The parties were advised that the customer service officer would contact them in the morning with an update.[4]I became available to deal with the matter commencing at 11am and the parties were notified accordingly. The first claimant, when contacted by the tribunal clerk indicated that as he believed it was very unlikely a judge would become available (based on his previous experience of floating cases), he had taken a shift at work and was no longer available. On my instruction the clerk informed the first claimant that the start of the hearing would be delayed until 12 noon in the hope that he could nonetheless join it. He indicated however that he would not be able to join as he had recently started with a new employer and he did not want to change his arrangements.[5]The hearing commenced at 11:50am. Having explained the position regarding the claimants’ non-attendance and discussed the way forward with the respondents, I concluded that having regard to the overriding objective the appropriate way forward was to consider any oral submissions in addition to their written applications and submissions, to then reserve my decision but to give the claimants an opportunity to make their own written submissions.[6]On my instruction a letter was sent to the claimants inviting a written reply to the respondents’ submissions no later than 4pm on 20 December 2024. In particular I suggested that they may wish to include in their comments:a. why they consider it is appropriate for their claims to continue against the second respondent despite the settlement agreements that they entered into with the same company in February 2024; andb. why they consider it is appropriate for their claims to continue against the first, third and fourth respondents when in those settlement agreements it was expressly stated that their employment with the second respondent had terminated on 13 (second claimant) or 14 (first claimant) November 2023 i.e. before the date of the alleged transfer of their employment to the other respondents (15 November 2023).[7]On 11 December 2024 the first claimant sent his submissions which I refer to below and have taken into account.Factual Background
[8]The factual background to the claims, as is often the way with TUPE matters, is complex. It is summarised in the Order of Judge Ramsden dated 2 July 2024. In very brief summary the claimants say that the second respondent (trading as Samsic) told them their employment would transfer to the first respondent. They therefore turned up for work but were subsequently told by the first respondent that they had not transferred. The third respondent is a subsidiary of the first. The fourth respondent is a subcontractor of the third. It is not at all surprising that the claimants became confused regarding their position and brought proceedings against all the potential transferees.[9]The central factual issue reduces to whether there had been a relevant transfer on 15 November 2023 and if so, were the claimants employed in the undertaking at that point. If they were then liability for their dismissal would have transferred but if not, it stayed with the second respondent.[10]The claimants lodged claims in January 2024 against the second respondent. They were resolved by way of settlement agreements dated 14 February 2024 and Judgments sent in due course dismissing the claims on withdrawal. The agreements included provisions that:a. The first claimant’s employment terminated on 14 November 2023 and the second claimant’s on 13 November 2023.b. Both claimants received more than minor compensation sums.c. Both settlements relied on a termination of employment having taken place expressly seeking to take advantage of the £30,000 tax-free termination allowance.[11]In the meantime on 7 February 2024 the claimants lodged this claim in terms very similar, if not identical, to the settled claims.Relevant Law
[12]The uncontroversial starting point is the familiar regulation 4 of The Transfer Of Undertakings (Protection Of Employment) Regulations 2006 (TUPE): 4.—(1) Except where objection is made under paragraph (7), a relevant transfer shall not operate so as to terminate the contract of employment of any person employed by the transferor and assigned to the organised grouping of resources or employees that is subject to the relevant transfer, which would otherwise be terminated by the transfer, but any such contract shall have effect after the transfer as if originally made between the person so employed and the transferee. (2) Without prejudice to paragraph (1), but subject to paragraph (6), and regulations 8 and 15(9), on the completion of a relevant transfer— (a)all the transferor’s rights, powers, duties and liabilities under or in connection with any such contract shall be transferred by virtue of this regulation to the transferee; and (b)any act or omission before the transfer is completed, of or in relation to the transferor in respect of that contract or a person assigned to that organised grouping of resources or employees, shall be deemed to have been an act or omission of or in relation to the transferee. (3) Any reference in paragraph (1) to a person employed by the transferor and assigned to the organised grouping of resources or employees that is subject to a relevant transfer, is a reference to a person so employed immediately before the transfer, or who would have been so employed if he had not been dismissed in the circumstances described in regulation 7(1), including, where the transfer is effected by a series of two or more transactions, a person so employed and assigned or who would have been so employed and assigned immediately before any of those transactions.[13]Mr Baker for the first and third respondents produced detailed written submissions in support of his position that the claims should be struck out. He referred to various principles including abuse of process, contractual estoppel, estoppel by conduct and settlement in multi-party litigation. Ms Wood for the second respondent had set out the relevant principles she referred to in her written application for the claims to be struck out. Ms Bains for fourth respondent adopted the arguments of the others.[14]The position can be distilled into two brief statements:a. First, if the same claimant is seeking to bring the same claim against the same respondent when the previous claim has been properly disposed of, that will be an abuse of process.b. Second, where a claimant is seeking to bring the same claim that has previously been properly disposed of but against a different party, that might also be an abuse of process depending on all the circumstances. Those circumstances will include the basis upon which the previous claim was resolved and how that resolution was expressed. The Submissions[15]The second respondent’s position is straightforward. They say that the claims brought against them in these proceedings are the same claims brought against them in the settled claims. Not only was there a settlement agreement but also a Judgment on withdrawal. There was no qualification to that withdrawal and no challenge to the settlement agreements. In short, the claimant simply want a second bite at the cherry.[16]The position of the first and third respondents is more nuanced and recognises that where there has been a TUPE transfer and claimants have settled against one of the potential transferees, it may still be possible for claims to continue against others. Mr Baker quite rightly drew my attention to the case of Tamang v Act Security Limited Appeal No. UKEAT/0046/12/BA where exactly that happened. However he distinguishes the situation in Tamang from these claims. He says that where the settlement agreement on its face records that the claimants’ employment was terminated by the second respondent, gives dates for those terminations and relies on those terminations for tax purposes, then the claimants are bound by that. Consequently they were not employed in the undertaking when any transfer took place on 15 November 2023.[17]As stated above the claimants were given an opportunity to make submissions and their comments were specifically invited on two particular questions. Mr Breit replied but in general terms and did not comment directly on those two questions. He referred to a ‘lack of transparency’ by the first respondent and that he believes the claimants should receive some recompense for the work they did for the first respondent after the transfer. As far as the second respondent is concerned, he said that ‘regardless of the money paid out from [them], it was after the fact of the fact and only when potential legal action was threatened.’Conclusions
[18]I am persuaded by the submissions of the respondents. The claimants clearly accepted not insignificant sums of money from the second respondent in full and final settlement of their claims against the second respondent arising from the transfer. To allow the same claims to continue against the second respondent would be a very clear abuse of process. Given the terms of those settlement agreements it would also be an abuse of process to allow the claims to continue against the remaining respondents. Even if there was a transfer on 15 November 2023 and even if the claimants were employed in that undertaking, they have expressly and unequivocally acknowledged that their employment terminated prior to that date and their employment therefore cannot have transferred to any of the other respondents. As to the claimants’ concern about having carried out unspecified work after the date of the transfer for which they were not paid, at most that would amount to a separate contract between the claimants and one of the other respondents which is not within the scope of these claims.[19]The claims are therefore struck out.