Mr H Gaw and others v Balfour Beatty Group Employment Ltd: 3300365/2014 and others
JUDGMENT
[1]The claimants’ applications to join as respondents Mouchel Limited and WSP UK Limited are refused.[2]The claimants’ claims against Balfour Beatty Group Employment Limited, as listed in the Schedule attached, are dismissed upon withdrawn.REASONS
[1]The claimants were originally represented by Minster Law. All these claims were issued by Minster Law. Leigh Day took over in July 2017. It is widely known that Minster Law struggled to handle a large number of group holiday claims and professional indemnity insurers have had to be called in to deal with 1 of 5 their mishandling. Leigh Day took over such claims as it could and has sought to pursue them on the claimants behalves. It became clear to Leigh Day that the wrong respondents had been named in each of these claims.[2]On 14th December 2018 Leigh Day applied to add five potential respondents, including Mouchel Limited and WSP UK Limited as being the correct employers, it being accepted that it had come to their attention and confirmed by them that Balfour Beatty were not the right employers. The application was later refined to be limited to be against Mouchel Limited and WSP UK Limited.[3]It is believed that these employees worked laying cables under the Scotland Transerve Joint Venture. Initially, some of the claimants were employed by Amey Services Limited. Thereafter, whether pursuant to TUPE transfers or otherwise, the claimants become employed by Mouchel Limited. Kier Highways was the 100% owner of the Mouchel Limited until October 2016 when WSP UK Limited acquired 100% of the share capital in Mouchel. There was a subsequent TUPE transfer of Mouchel employees to WSP UK Limited in July 2017. That was a transfer within the WSP Group. Mr Gaw and Mr Martin left the employment of Mouchel Limited prior to WSP’s acquisition of the shareholding of the Mouchel. Messrs Lynch, Tannock & Kelly, I am told, remained employed by WSP.[4]These claims should have been brought against Mouchel Limited. Instead, they were brought as part of a far larger multiple claim against Balfour Beatty Group Employment Limited. The claimants never worked for Balfour Beatty Group Employment Limited and Mouchel Limited has no connection whatsoever with the Balfour Beatty Group. It was simply an error to join Balfour Beatty Group.[5]This came to Leigh Day’s attention during the course of ADR discussions with Balfour Beatty. Balfour Beatty have compromised many of these holiday pay claims with Leigh Day but for understandable reasons have declined to compromise the claims of these five claimants because these five claimants never worked for them.[6]These claims relate to holiday pay, paid over a two year and three month period between 2014 and 2016. The claims are now historical only because no fresh or amended claims have been brought for the period after May 2016. It is not the case, then, in respect of the three employees who still work for WSP UK Limited, that amendments are made to these claims every three months or so, claiming that holiday pay has been underpaid. Such amendments are typical in other holiday pay multiple claims. The claims originally were for the 20 days ‘European’ holidays claiming a failure to pay overtime as normal pay. It is accepted that the claims in themselves are likely to be modest in value only.[7]Mr Cheetham QC and Ms Clark agree that the only test I am to apply is the balance of prejudice. Plainly, these claims are brought out of time in respect of the new proposed respondents. 2 of 5[8]On behalf of the claimants, it is submitted that there is no reason to think that these claims are not prima-facie arguable claims. The problem with them is that the wrong respondent has been named. Not that they do not have merits.[9]On behalf of the proposed new respondents, Ms Clark submits they would be significantly prejudiced. They did not know of the claims when they were being first made and therefore it is very difficult to defend the claims, in contrast to the position had the claims been made against the right respondent at the beginning. Ms Clark persuasively submits that when WSP UK Limited acquired the Mouchel shareholding in October 2016, protection could have been introduced to make sure that the value of the holiday pay claims were reflected in the deal and further as a matter of record-keeping, data collection could have been undertaken so that the holiday pay claims could be monitored and evaluated. I am told that the records do not exist of what was paid during Mouchel times prior to the WSP interest. I am told that Mouchel Limited no longer trades.[10]Further, it is submitted on behalf of the respondent that the claimants are not without remedy. It has been accepted by Mr Cheetham in front of me that the Minster Law insurers are aware of this claim and are in the frame for dealing with the claimants claims, should the amendment not be granted.[11]It is significant that the claims have not been progressed to the extent of there being schedules of loss, making it clear how the claims have been calculated. I accept from the proposed respondents that if they are joined, significant time and solicitor costs will be incurred in having to make sense of the claims in the first place.[12]No explanation has been put forward as to why it was that Minster Law simply sued the wrong respondents.[13]I am satisfied that it would not be fair on the proposed respondents to join them in to these proceedings at this very late stage and I am persuaded by Ms Clark that there is genuine prejudice in not knowing about the existence of these claims when first of all WSP acquired the shareholding from Keir Holidays and thereafter when there was a transfer of undertaking from Mouchel to WSP UK Limited. They were unaware of the claims so could not keep records of what holiday pay had been claimed and upon what basis. It is not right that the proposed respondents should have to deal with claims still procedurally in their infancy with no detailed schedule of loss making the claims comprehensible. They were unable to protect themselves in negotiations when acquiring the shareholding.[14]The claimants themselves ought not to lose out if the fault was not theirs and it was the fault of their previous solicitors, Minster Law. They have a remedy against Minster Law’s professional indemnity insurers. I urge Leigh Day to do all that is right to preserve the claimant’s interests in those claims against Minster Law. Mr Cheetham leads me to believe that this is being done. 3 of 5[15]Accordingly, I refuse permission to add the proposed respondents. That being the outcome, it is acknowledged by Mr Cheetham that the claims against Balfour Beatty have to be dismissed upon withdrawal. Employment Judge Smail Dated: 02/04/2019 02/04/2019 For the Tribunal …………………………. 4 of 5 SCHEDULE OF CLAIMS Hugh Gaw 3300365/2014 3300889/2014 3301698/2014 3300350/2015 2404975/2015 2400487/2015 2400900/2016 2400333/2016 James Kelly 4104558/2015 2404986/2015 2407497/2015 2400912/2016 2405342/2016 Mr Paul Lynch 3301803/2014 3300365/2015 2404994/2015 2407505/2015 2400920/2016 2405350/2016 William Cole-Martin 3301798/2014 Gordon Tannock 3300375/2014 3300899/2014 3301708/2014 3300409/2015 2405045/2015 2407553/2015 2400967/2016 2405411/2016 5 of 5