Nerijus Antuzis and Others v DJ Houghton Catching Services Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lane |
| Judgment Date | 08 April 2019 |
| Neutral Citation | [2019] EWHC 843 (QB) |
| Docket Number | Case No: HQ15X04315, HQ17X01156, HQ17X03427 |
| Court | Queen's Bench Division |
| Date | 08 April 2019 |
[2019] EWHC 843 (QB)
THE HON. Mr Justice Lane
Case No: HQ15X04315, HQ17X01156, HQ17X03427
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
John Hendy QC, Harry Lambert (instructed by Leigh Day Solicitors) for the Claimants
Andrew Allen, Mark Greaves (instructed by Brett Wilson Solicitors) for the Defendants
Hearing dates: 19, 20, 21, 22 February 2019
Approved Judgment
A. INTRODUCTION
These proceedings concern an application for summary judgment and the trial of a preliminary issue. The claimants are nationals of Lithuania, who contend that they were employed by the first defendant (D1) in an exploitative manner, commonly working extremely long hours and being paid less than the statutory minimum prescribed by the Agricultural Wages Act and the Orders made under it. The claimants were employed at various farms to catch chickens, which were then transported for slaughter and subsequent human consumption.
The claimants further contend that they were frequently not paid the sums which were recorded as being due to them on their respective pay slips, which had in any event been calculated on a fictional basis. Payments were often withheld as a form of punishment for alleged transgressions. D1 made no attempt to pay the claimants holiday pay, to which they were entitled, or to pay overtime at the prescribed rates. Nor was a claimant permitted to take absence on account of bereavement.
Deductions were also, the claimants say, unlawfully made in respect of so-called employment fees and for rent, in respect of premises at which the claimants were effectively required to reside, with the rent being in excess of the maximum permitted under the legislation.
B. THE ORDER OF 8 AUGUST 2018
On 8 August 2018, Master Yoxall ordered there to be a trial of a preliminary issue; namely whether the second and third defendants (hereafter D2 and D3) are personally, jointly and/or severally liable to the claimants for the D1's breaches of contract. The order stated that “for the avoidance of doubt reference to claims under ‘breaches of contract’ includes any related claims under statute or statutory instrument”. The present proceedings do not involve the fourth defendant.
So far as concerned summary judgment, the order envisaged that the application for this would be heard immediately after the trial of the preliminary issue. The summary judgment application relates to:-
i) paragraphs 74–75 of the generic particulars of claim;
ii) paragraphs 19, 26–28 and 55 of the generic defence;
iii) paragraphs 17–19 of the individual defences in the cases of Vygantas Bucyms and Edmundas Mikiulkevicius;
iv) any other paragraphs identified in the application notice.
The claimants categorise the breaches covered by the application for summary judgment as “breaches of express or implied terms of the contracts of employment of the claimants. These breaches arose by reason of unpaid wages, unlawful deductions and fees, and lack of holiday pay”. Certain of these breaches are said to be admitted by D1.
C. APPROACH TO SUMMARY JUDGMENT AND PRELIMINARY ISSUE
In determining the application for summary judgment, I apply the test set out in CPR 24.2. So far as relevant, this provides for such judgment where the court:-
“a) … considers that:
(i) the claimant has no real prospect of succeeding on the claim or issue; or
(ii) the defendant has no real prospect of successfully defending the claim or issue; and
(b) there is no other compelling reason why the case or issue should be disposed of at trial”.
What CPR 24.2 means in practice was described by Lord Woolf MR in Swain v Hillman [2001] 1 ALL ER 91 as follows:-
“The words ‘no real prospect of succeeding’ do not need any amplification, they speak for themselves. The word ‘real’ distinguishes fanciful prospects of success …they direct the court to the need to see whether there is a ‘realistic’ as opposed to a ‘fanciful’ prospect of success.”
I shall explain later the approach I adopt to the preliminary issue. In essence, however, it involves applying the so-called rule in Said v Butt [1920] [3] KB 497, in which it was held that a director of a company is not liable for inducing breach of contract by that company, if the director is acting bona fide within the scope of his authority.
D. EMPLOYMENT LEGISLATION REGARDING AGRICULTURAL WORKERS
It is necessary to look in some detail at the Agricultural Wages Act 1948 and the Orders (hereafter AWOs) made under it. Until its abolition in 2013, after the events with which we are concerned, the Agricultural Wages Board, established by the 1948 Act, fixed minimum rates of wages for workers employed in agriculture and directed that any such workers should be entitled to be allowed employees' holidays of such duration as might be specified in such a direction. Section 3(2) empowered the Board to fix minimum rates for time work and piece work and, importantly for our purpose, to fix minimum rates for time-work, to apply in the case of workers employed on piece work, for the purpose of securing for such workers a minimum rate of remuneration on a time-work basis.
Section 4 provided that if an employer failed to pay a worker wages at a rate not less than the minimum rate fixed by the AWO, or to pay a worker relevant holiday pay, the employer was to be liable on summary conviction to a fine.
Section 4 further provided that in any proceedings against an employer under section 4(1), the court “shall, whether there is a conviction or not, order the employer to pay in addition to the fine, if any, such sum as may be found by the court to represent the difference between the amount which ought at the minimum rate, applicable, to have been paid to the worker by way of wages during the period of six months immediately preceding the date on which the information was laid or the complaint was served, and the amount actually paid to him”. The powers for the recovery of sums due were stated by section 4(4) not to be in derogation of any right of the worker to recover such sums by civil proceedings.
Following the enactment of the National Minimum Wage Act 1998, section 3A was inserted into the 1948 Act. This provided for the enforcement provisions of the 1988 Act to have effect for the purposes of enforcing the 1948 Act, including the entitlement to be paid the minimum agricultural wage. Of particular significance is section 17 of the 1998 Act. This provides that, where a worker who qualifies for the minimum wage is remunerated at less than that minimum, the worker shall be taken to be entitled under his contract to be paid as an additional remuneration in respect of the period in question, an amount equal to the difference between the relevant remuneration received and the relevant remuneration which a worker would have received had he been paid the minimum wage. Thus, the entitlement to be paid the minimum wage is a term of the contract between the worker and the employer.
At all material times, the claimants enjoyed the benefit of AWOs. For our purposes, apart from the actual amount of the minimum wage (which changed each October), the relevant provisions of the AWOs were in essence the same.
For present purposes, it is helpful to concentrate on the Agricultural Wages (England and Wales) Order 2012. Article 1(2) provided that the Order applies to every worker employed in agriculture in England and Wales. Article 2 contains a number of definitions, including the following:-
“Guaranteed overtime” means overtime which a worker is obliged to work under their contract of employment and in respect of which the worker's employer guarantees payment to the worker, whether or not there is work for the worker to do;
…
“night work means work (apart from overtime hours) undertaken by a worker between 7 p.m. one evening and 6 a.m. the following morning, but excluding the first two hours of work that a worker does in that period;
…
“on-call” means an arrangement whereby a worker who is not at work agrees with their employer to be contactable by an agreed method and able to reach the place where they may be required to work within an agreed time;
…
“other overtime” means overtime (other than guaranteed overtime) worked by a worker under their contract of employment;
“sickness absence” means the absence of a worker from work due to the worker's incapacity by reason of:
(a) any illness suffered by the worker;
…
(c) an injury that occurs to the worker at the worker's place of work;
…
“worker” means a worker employed in agriculture;
“working time” means:
(a) any period during which the worker is working at their employer's disposal and carrying out their employer's activities or duties;
(b) any period during which the worker is receiving relevant training; and
(c) any additional period which the worker and employer agree shall be treated as working time.”
Part 2 of the Order set out various grades of workers. The claimants fall within the definition of “standard worker – Grade 2”, contained in Article 5.
Part 3 dealt with minimum rates of pay. Article 17 required the worker to be paid no less than the minimum rate of pay as set out in the Order for their grade or category:
“(a) when they are working; or
(b) (other than a worker who has a contract of employment which provides for payment at piece rates) when they are available at or near their place of work for the purpose of working and when they are required to be available for such work…”
Article 17 provided that, subject to certain exceptions, a worker is to paid no less than the minimum rate...
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