Miss O Sohail v Premier Work Support Ltd: 2400126/2017
EMPLOYMENT TRIBUNALS
Case No 2400126/2017
Between
Miss O SohailClaimantPremier Work Support LtdRespondent
Before
Employment Judge FraneyIn person for claimantMiss A Smith (instructed by Counsel) for respondentDate 12 July 2017
JUDGMENT
All complaints arising out of the actions of “Justyna” in these proceedings are dismissed because they have no reasonable prospect of success, and Premier Work Support Limited is removed as a respondent.
REASONS
[1]By her claim form presented on 15 December 2016 the claimant brought complaints of discrimination and harassment because of or related to race and religious belief against the respondent employment business, which had supplied her services to a company based at Manchester Airport called WFS Ground Handling Services Ltd (“WFS”). Her complaints were about treatment from colleagues said to be because of or related to the claimant being Pakistani and/or a Muslim. One of the colleagues responsible was identified as a Passenger Service Agent called “Justyna”.[2]By its response form of 21 February 2017 the respondent resisted the complaints on their merits.[3]The complaints and issues were clarified at a preliminary hearing before Employment Judge Horne on 29 March 2017. It was unclear at that stage whether Justyna had been employed by the respondent or for WFS, but by a subsequent letter of 19 April 2017 the respondent accepted that Justyna was employed by it within the meaning of the Equality Act 2010. Employment Judge Horne set out in Schedule A to his Case Management Order the complaints brought against the respondent because of the actions of Justyna, and set out in Schedule B the complaints potentially brought against WFS arising out of the actions of four other employees.[4]Employment Judge Horne also listed the case for a further preliminary hearing to determine (amongst other things) the application made by the respondent to strike out the claims based on the actions of Justyna because they had no reasonable prospect of success. That hearing was originally listed for 18 May 2017 but was postponed to 12 July 2017.[5]To help me determine that application I had read the Tribunal file, including the claim form, the response form, Employment Judge Horne’s Case Management Order, and all the correspondence on file. I also had the benefit of oral submissions from Miss Smith for the respondent and from the claimant in person. Relevant Legal Principles[6]The power to strike out arises under what is now rule 37 of the Employment Tribunals Rules of Procedure 2013. Rule 37 so far as material provides as follows: “At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds – (a) that it is scandalous or vexatious or has no reasonable prospect of success…”[7]As far as “no reasonable prospect of success” is concerned, a helpful summary of the proper legal approach to an application to strike-out is found in paragraph 30 of Tayside Public Transport Co Ltd v Reilly [2012] CSIH 46, a decision of the Inner House of the Court of Session: “Counsel are agreed that the power conferred by Rule 18(7)(b) may be exercised only in rare circumstances. It has been described as draconian (Balls v Downham Market High School and College [2011] IRLR 217, at para 4 (EAT)). In almost every case the decision in an unfair dismissal claim is fact-sensitive. Therefore where the central facts are in dispute, a claim should be struck out only in the most exceptional circumstances. Where there is a serious dispute on the crucial facts, it is not for the Tribunal to conduct an impromptu trial of the facts (ED & F Mann Liquid Products Ltd v Patel [2003] CP Rep 51, Potter LJ at para 10). There may be cases where it is instantly demonstrable that the central facts in the claim are untrue; for example, where the alleged facts are conclusively disproved by the productions (ED & F Mann Liquid Products Ltd v Patel, supra; Ezsias v North Glamorgan NHS Trust [[2007] ICR 1126]). But in the normal case where there is a “crucial core of disputed facts,” it is an error of law for the Tribunal to pre-empt the determination of a full hearing by striking out (Ezsias v North Glamorgan NHS Trust, supra, Maurice Kay LJ, at para 29).”[8]There is no blanket ban against there being a strike-out, for instance in particular classes of cases such as discrimination, although in Lockey v East North East Homes Leeds UKEAT/0511/10/DM, a decision of 14 June 2011 before HHJ Richardson sitting alone, the EAT said at paragraph 19: “…In cases of discrimination and whistleblowing there is a particular public interest in examining claims on their merits which should cause a Tribunal to consider with special care whether a claim is truly one where there are no reasonable prospects of success: see Ezsias at paragraph 32, applying Anyanwu v South Bank Student’s Union [2001] IRLR 305. …..The Tribunal is in no position to conduct a mini-trial; issues which depend on disputed facts will not be capable of resolution unless it is clear that there is no real substance in factual assertions made, as it may be if they are contradicted by contemporaneous documents.”[9]In Chandhok v Tirkey [2015] IRLR 195, at paragraph 20 the Employment Appeal Tribunal observed that there were occasions when a claim could properly be struck-out where, for instance, on the case as pleaded, there was really no more than an assertion of a difference of treatment and a difference of protected characteristic, circumstances which according to Mummery LJ, at paragraph 56 of his Judgment in Madarassy v Nomura International plc [2007] ICR 867: “… only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.”[10]The EAT in Chandhok went on to add that the general approach was nonetheless that the exercise of a discretion to strike-out should be sparing and cautious, adding: “… Nor is this general position affected by hearing some evidence, as is often the case when deciding a preliminary issue, unless a Tribunal can be confident that no further evidence advanced at a later hearing, which is within the scope of the issues raised by the pleadings, would affect the decision.”
Discussion and Conclusions
[11]Miss Smith accepted that the application should be determined on the assumption that the claimant would prove the facts in her claim form and in her allegations as recorded by Employment Judge Horne. She submitted, however, that even if those facts were proven there was no reasonable prospect of success. Employment Judge Horne had taken time to clarify with the claimant why she thought that these actions were because of or related to her race and/or religious belief, but she had been unable to provide any reason other than to say that she just believed that to be the case. She submitted that this was not sufficient to shift the burden of proof to the respondent and therefore there was no reasonable prospect of success.[12]I explained the legal framework to the claimant and gave her an opportunity to respond. I asked her how she was going to prove facts from which the Tribunal could reasonably conclude that Justyna treated her as alleged because of race or religious belief, or in a way which was related to those protected characteristics. The claimant said that the behaviour of Justyna had been directed only towards her and she was not treated the same as everyone else. Everyone knew about this. There was nothing that triggered the behaviour and no reason that she could see other than race and religious belief. There were, for example, no comments said to have been made by Justyna which showed negativity towards people of the claimants’ race or religion.[13]Further, it emerged, that there were two other workers who were Pakistani and/or Muslim, Shabana (who is one of the persons against whom the other allegations are brought) and another person, and that Justyna had not treated either of them in the same way as she had treated the claimant. The claimant said she thought this was because they had both been there longer than she had.[14]I was mindful of the authorities summarised above which caution Tribunals against striking out claims which are fact sensitive, and of those which remind Tribunals of the particular importance that complaints of unlawful discrimination should be examined on their merits. However, it seemed to me that even on the facts established by the claimant she was unable to point to anything which, applying Madarassy, would shift the burden of proof. Her case as pleaded (and as amplified in oral submissions) was really no more than an assertion of a difference in treatment and a difference of protected characteristic. Further, although the fact that other Pakistani workers and/or Muslim workers were treated more favourably than the claimant was not a defence to her claim if the burden of proof shifted, it underlined the difficulties she faced in establishing any link between her protected characteristics and the treatment of which she complains.[15]In those circumstances I was driven to the conclusion that even if the claimant proves all the facts on which she relies these allegations have no reasonable prospect of success and I therefore dismissed them under rule 37(a). Effect of this Judgment[16]All the allegations of discriminatory behaviour by Justyna are dismissed. This means that the respondent is no longer potentially liable in these proceedings.[17]The allegations of discriminatory treatment against other individuals are not affected by this judgment and the case will proceed in relation to those matters.
Introduction
[1]This was a Preliminary Hearing convened to determine applications made to join WFS, ASIG and Swissport as respondents.[2]The applications involved consideration of an issue of law about the proper interpretation of the Transfer of Undertaking (Protection of Employment) Regulations 2006 (“TUPE”): could vicarious liability for conduct contravening the Equality Act 2010 transfer under regulation 4 of TUPE when it was not the victim but the alleged perpetrator whose contract was transferred? That issue was potentially determinative of some of the applications.[3]The claimant was unable to attend this Hearing, but I considered it appropriate to determine this preliminary issue in her absence. It was to be determined on agreed facts. Both sides of the argument were to be presented by experienced counsel. My reasons for proceeding are set out in more detail in the Case Management Order which is being issued at the same time as this judgment. Procedural background[4]It is appropriate to summarise briefly the procedural background to put this decision into context.[5]The claimant was employed as a passenger service agent by Premier Work Support Limited (“Premier”) between 18 July and 14 October 2016. In that period she was assigned to work for WFS, and worked with four members of staff who were employees of WFS: Ms Bailey, Ms Chaudhry, Mr Clarke and Ms Carr. The claimant alleged in her claim form presented on 15 December 2016 that those four employees subjected her to treatment which amounted to direct discrimination because of race or religion, or harassment related to race or religion. The allegations are denied and have yet to be determined on their merits.[6]The claimant also made allegations against an employee of Premier, “Justyna”. At a Preliminary Hearing on 12 July 2017 those allegations were dismissed because they had no reasonable prospect of success.[7]In relation to the allegations arising out the conduct of the four individuals named above, Premier suggested that WFS should be added as a respondent because it was liable in principal for any discriminatory conduct by its employees pursuant to the contract worker provision in section 41 of the Equality Act 2010. WFS suggested, however, that any such liability now rested with employers to whom any of the four alleged perpetrators had subsequently transferred under TUPE.[8]It was later established that with effect from 1 November 2016 Ms Bailey and Ms Chaudhry transferred to ASIG, and Mr Clarke transferred to Swissport. Ms Carr resigned from her employment with WFS before the transfer. The position of WFS, therefore, was that it remained liable for any discriminatory conduct by Ms Carr, but it was no longer liable for any discriminatory conduct by the three other alleged perpetrators. It said that their new employers should be added as respondents.[9]Swissport did not attend this hearing (despite having been notified of it) but ASIG argued that no liability could have passed to ASIG arising out of the transfer of Ms Bailey and Ms Chaudhry. I took it that Swissport would rely on the arguments raised on behalf of ASIG. Undisputed Facts[10]I made my decision on the basis of the following undisputed facts.[11]The claimant was a contract worker supplied by Premier to work for WFS between 18 July and 14 October 2016. She alleges that during that period she was subjected to treatment by WFS employees Ms Bailey, Ms Chaudhry and Mr Clarke which contravened the Equality Act 2010. Two weeks after the clamant ceased to work at WFS those three individuals also ceased to be employed by WFS. For reasons unrelated to the claimant and her allegations Ms Bailey and Ms Chaudhry were transferred under TUPE to the employment of ASIG, and Mr Clarke was transferred under TUPE to the employment of Swissport. The Issue[12]Section 109 of the Equality Act 2010 makes an employer liable for any discriminatory acts done by its employees in the course of their employment. Assuming for these purposes that claimant’s allegations are well-founded, WFS was liable at the moment any such acts were done by the alleged perpetrators. Did that liability subsequently pass to ASIG/Swissport under regulation 4 of TUPE or did it remain with WFS? Relevant legal framework[13]I will set out the provisions of the Equality Act 2010 before considering EU law and TUPE. Equality Act 2010[14]The claim in these proceedings was brought under Part 5 of the Equality Act 2010 which deals with unlawful discrimination at work. Section 41 prohibits discrimination or harassment by a “principal” of a “contract worker”.[15]Part 8 of the Act is headed “Prohibited Conduct: Ancillary”. Section 109 is headed “Liability of Employers and Principals”. Section 109(1) reads as follows:- “Anything done by a person (A) in the course of A’s employment must be treated as also done by the employer”.[16]Section 109 goes on to make clear that it does not matter whether that thing is done with the employer’s knowledge or approval, but that there is a defence if the employer has taken all reasonable steps to prevent its employee from acting in that way.[17]The Equality Act makes no provision for a situation in which the employment of the individuals involved is subsequently transferred to another employer. Council Directive 2001/23/EC[18]The TUPE regulations seek to implement EU Council Directive 2001/23/EC of 12 March 2001, commonly known as the Acquired Rights Directive (“the Directive”).[19]There is an abundance of indications as to the purpose of the Directive. The title makes clear that it is concerned with the approximation of the laws of member states:- “relating to the safeguarding of employee’s rights in the event of transfers of undertakings…”[20]Amongst the recitals is found the following:- “(3) It is necessary to provide for the protection of employees in the event of the change of employer, in particular, to ensure that their rights are safeguarded.”[21]The operative provision is Article 3. It appears in Chapter II of the Directive, which is headed “Safeguarding of Employee’s Rights”. Article 3(1) reads as follows:- “The transferor’s rights and obligations arising from a contract of employment or from an employment relationship existing on a date of a transfer shall, by reason of such transfer, be transferred to the transferee. Member states may provide that, after the date of transfer, the transferor and transferee shall be jointly and severally liable in respect of obligations which arose before the date of transfer from a contract of employment or an employment relationship existing on the date of the transfer.” Transfer of Undertakings (Protection of Employment) Regulations 2006[22]Article 3(1) is implemented in UK law by Regulation 4 of TUPE of which the material parts are as follows:- “(1) Except where objections are made under paragraph (7), a relevant transfer shall not operate so as to terminate the contact 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.”[23]Regulation 4(6) excludes from the effect of Regulation 4(2) the liability of any person to be prosecuted for, convicted of and sentenced for any offence. Regulation 8 makes special provisions in the event of insolvency. There are no other express exclusions from the scope of Regulation 4(2).[24]Nor has the UK chosen to make provision for joint and several liability as Article 3(1) the Directive allows. The only provision to that effect appears in Regulation 15(9) and is concerned with a failure to inform and consult employees about a relevant transfer. Otherwise, if Regulation 4(2) applies, the transferor is relieved of the liability when it passes to the transferee. Case Law[25]It was common ground between the advocates that none of the reported authorities directly addressed the point of issue in this Hearing. I was, however, taken to the following cases.[26]DJM International Ltd v Nicholas [1996] IRLR 76 was a decision of the Employment Appeal Tribunal (“EAT”) chaired by Mummery P (as he then was) which concerned an employee forced to retire at the age of 60 but then re-employed on a part-time basis ten days later. Her employment was subsequently transferred to the respondent and she was then made redundant. Her complaint included a complaint of sex discrimination in relation to her retirement at age 60 before the transfer, and the point at issue was whether the liability for any unlawful discrimination transferred under TUPE (the 1981 Regulations) even though she was employed on a different contract by the time of the transfer. The EAT held that liability did transfer because what mattered was the employment relationship, not the particular contract (see Article 3 of the Directive). The EAT made reference in paragraph 16 of the Judgment to the fact that: “The broad aim of the Regulations and the Directive is to ensure, as far as possible, that [the employment] relationship continues unchanged with the transferee”.[27]The Court of Appeal had cause to consider the position where an employee seeks to bring a tort claim for compensation for personal injury against his or her employer in two combined cases of which the first was Bernadone v Pall Mall Services Group [2000] IRLR 487. The claimant in that case had sustained personal injury in the course of employment before being transferred to a new employer under TUPE. The question was whether the effect of TUPE1 was to transfer liability for negligence or breach of statutory duty to the transferee.[28]The Court of Appeal held that liability in tort transfers in the same way as liability for matters within the jurisdiction of an Employment Tribunal. The lead Judgment came from Peter Gibson LJ. He said at paragraph 16 that: “It is not in dispute that TUPE must be given a purposive construction having regard to, and, so far as possible, consistently with, the Directive.”[29]He went on to say at paragraph 34: “It is clear that [the Directive’s] purpose is to safeguard the rights of employees on a change of employer by a transfer of an undertaking. The economic entity carrying on the undertaking after the transfer will be the transferee, and in general the employees are more likely to be protected if the rights and obligations to be transferred are more rather than less comprehensive. But such rights and obligations must of course fall within the limiting words "arising from a contract of employment or from an employment relationship". It would seem to me to be surprising if the rights and obligations were to be limited to contractual claims and to exclude claims in tort.”[30]So too did the rights of the transferor under any employer’s insurance policy (paragraph 48). The right to claim indemnity from the insurers was a right which arose from and was in connection with the contract of employment of the transferred 1 Regulation 5 of the 1981 Regulations which did not materially differ from the present provision. employee, and was a matter in respect of which the insurer would have already received a premium (see Clarke LJ at paragraph 64).[31]Both of these authorities were concerned with situations where the contract of the injured party transferred. No reported authority appears to address the position when it is the contract of the alleged tortfeasor which transferred. However, Mr Brittenden was aware of a decision of Sheffield County Court of 2 December 2007 in Doane v Wimbledon Football Club. A transcript of the Judgment was not available. The summary of the case (reproduced in Mr Brittenden’s skeleton argument) was that the claimant was a professional footballer playing for Sheffield United who was injured in an allegedly negligent tackle by a Wimbledon player. After the incident there was a TUPE transfer of the employment of the Wimbledon player to MK Dons. The County Court concluded that any liability to compensate the claimant for his actions also transferred to MK Dons. However, I declined to attach any weight to that decision in the absence of a transcript of the Judgment. As Mr Brochwitz-Lewinski pointed out, it was not clear whether the transfer of liability rested on TUPE alone or on a contractual assignment of liabilities between Wimbledon Football Club and MK Dons. I did not consider it binding upon this Tribunal. Submissions WFS Submission[32]For WFS Mr Brittenden had helpfully reduced his submissions to writing. Reference should be made to his written submissions as appropriate.[33]In broad terms, he contended that the plain and natural meaning of Regulation 4(2) was to transfer all liabilities in connection with any contract of employment transferred under TUPE, and that this extended to the contract of the alleged perpetrators not simply the contract of the claimant. There was no doubt that discrimination liabilities under what is now the Equality Act 2010 were covered in principle by Regulation 4(2), and he drew attention to a number of comments made in Bernadone about the breadth of the provision. However, the protection of employee’s rights was not the only purpose behind the Directive and the Regulations.[34]He argued that by section 109 the actions of the alleged perpetrators were treated as actions of WFS, and upon the subsequent transfer of those employees those deemed actions of WFS were to be treated as done by the transferees. Accordingly, any liabilities on the part of WFS arising out of such actions were liabilities in connection with the contracts of employment of those employees which transferred under Regulation 4(2)(a).[35]In support of that Mr Brittenden pointed out that absent insolvency the UK Government had not chosen to exempt anything from the transfer of liabilities save for criminal matters, and further that there was no indication in the language of the Directive that any such limitation might be contemplated. The argument pursued by ASIG would require the insertion of a number of words into Regulation 4(2) to make its meaning plain, and there was no need to imply such words for the sake of protecting the rights of employees. Further, the decision in Bernadone that the right to claim indemnity from the transferor’s insurer transferred illustrated that regulation 4 could affect the position of third parties, not simply the employer and the transferring employee. ASIG Submission[36]For ASIG Mr Brochwitz-Lewinski submitted that the interpretation for which WFS contended was entirely misconceived. The only purpose of the Directive was to protect the rights of employees. That was the purpose of TUPE too. Protection of the claimant’s rights in this situation did not require so broad a reading of Regulation 4. It was never envisaged in the Directive or in TUPE that if a claimant did not herself transfer to a new employer any of her rights would nevertheless be transferred. That explained why in none of the reported cases was any discussion of this point to be found.[37]Mr Brochwitz-Lewinski supported his submission by reference to two examples. The first was where a member of the public brought a claim for compensation against an organisation for personal injury caused by negligence of one of its employees. If that employee subsequently was transferred under TUPE to a new employer, it would be nonsense to suggest that the claimant should pursue his claim against that new employer. The employing organisation at the time of the negligent act remained liable.[38]The second example was where a claimant brought a complaint of harassment against her manager, but subsequently the claimant and her manager both transferred under TUPE to different employers. Mr Brochwitz-Lewinski submitted that TUPE meant that the claimant’s cause of action would lie against her new employer, not against the new employer of the alleged perpetrator.[39]He also drew my attention to the 21st Edition of Clerk & Lindsell on Tort which deals with the question of assignment in paragraph 5.65 – 5.70. The last of those paragraphs deals with the question of transfers of undertaking pursuant to the Directive and TUPE, and refers only to liabilities owed to the employee transferred. It makes no mention at all of liabilities owed to external third parties arising out of the actions of the transferred employee. He submitted that if Mr Brittenden were correct, that would be an astonishing omission from the leading textbook.[40]Finally, Mr Brochwitz-Lewinski submitted that not only was the construction for which Mr Brittenden argued unnecessary to give effect to the purpose of the Directive, it would actively frustrate it in some cases. A claimant might find herself having to pursue complaints against new employers of different perpetrators without having any information as to who those companies were because she had no connection with them.
Discussion and Conclusions
[41]I considered the competing arguments in the absence of any authority on the point.[42]Mr Brittenden’s argument had the advantage of matching the words found in Regulation 4(2). It did not require any qualification to the plain language of the Regulation. On his analysis, when Ms Bailey (for example) transferred to ASIG her contract of employment had effect as if originally made between her and ASIG. As a consequence by Regulation 4(2)(a) any liability to pay compensation to the claimant for unlawful actions by Ms Bailey in the course of her employment with WFS (if any are proven) would be a liability in connection with Ms Bailey’s contract of employment, and therefore a liability which transferred to ASIG under Regulation 4(2)(a). Her actions were deemed to have been actions of WFS by 109(1) Equality Act 2010, and after the transfer would therefore be treated as acts of by virtue of Regulation 4(2)(b).[43]In the course of argument I asked Mr Brittenden to respond to the example given by Mr Brochwitz-Lewinski about a situation where the claimant and alleged perpetrator are both transferred under TUPE to different employers after the alleged unlawful conduct. He replied to the effect that both transferees would be liable jointly and severally and suggested that was a familiar situation under the Equality Act 2010. As for the personal injury example, he suggested the outcome would be as it appeared to have been in Doane.[44]Despite the compelling way in which Mr Brittenden presented these submissions, however, I preferred the argument of Mr Brochwitz-Lewinski.[45]TUPE cannot be read without consideration of the Directive which provides the purpose and context of TUPE. The Directive is plainly concerned with the protection of the rights of employees. Article 3 is found in a chapter devoted to the safeguarding of employee’s rights. Nowhere is there any clue that it was intended to operate in respect of the rights of individuals other than employees affected by the relevant transfer. Mr Brochwitz-Lewinski’s interpretation fully meets the purpose of the Directive.[46]In contrast, the interpretation for which Mr Brittenden contends would potentially operate contrary to that purpose. Under both EU law (the Contract of Employment Directive 91/533/EEC) and domestic law (section 1 Employment Rights Act 1996) an employee should be informed in writing of the identity of the body which employs her. If her employment is to be transferred under TUPE she has a right to be informed and consulted and told which company will employ her following the transfer if she does not object (TUPE Regulation 13). In principle, therefore, the transfer should have no effect on her ability to enforce her rights. If Mr Brittenden’s interpretation were correct, however, those safeguards would be jeopardised. The claimant might have no information at all about the identity of the employer to which an alleged perpetrator has been transferred. That would in practice make enforcement of her rights more difficult if such a transfer has the effect of relieving her own employer of liability and transferring it to an organisation of which she knows nothing.[47]I do not accept that significant rewriting of regulation 4 would be necessary to make this clear. In my judgment the liabilities to which TUPE refers in Regulation 4(2)(a) are liabilities owed to the person transferred, not liabilities owed to third parties otherwise unaffected by the relevant transfer. The purpose of the Directive requires that but nothing more. The right to claim indemnity from the transferor’s insurer in Bernadone was a right to claim an indemnity in respect of such a liability. It was not inconsistent with Mr Brochwitz-Lewinski’s argument. To add the words “owed to the person transferred” to Regulation 4(2)(a) would be to make express what is already necessarily implied.[48]Similarly, in Regulation 4(2)((b) the alleged actions of Ms Bailey (for example) towards the claimant were deemed by section 104 Equality Act 2010 to have been actions which WFS was deemed to have done in respect of the claimant and her contract. WFS was not deemed to have done them in respect of Ms Bailey’s contract. When Ms Bailey’s contract transferred to ASIG they did not become deemed actions of ASIG.[49]Accordingly whilst a literal and mechanical reading of Regulation 4 appears to support the argument pursued by WFS, a purposive reading in my judgment leads to the contrary conclusion.[50]The applications to join ASIG and Swissport to the proceedings must be dismissed because they are unsustainable as a matter of law.