Employment status: taxi driver not a ‘worker’

The Employment Appeal Tribunal (EAT) has decided that a taxi driver, working through the ‘Mytaxi’ app, did not have the status of a ‘worker’ of the app operator.

Johnson v Transopco UK Ltd, EA-2020-000780

Facts

The claimant in this case was a black cab driver in London, who worked on his own account but also registered as a driver on the ‘Mytaxi’ app, earning around 15% of his income from trips he made through the app. Following his removal from the app, he brought several claims against the operator, Transopco, including claims that he should have received the national minimum wage and holiday pay, which required him to establish worker status.

An employment tribunal found that the claimant had an obligation of personal service to Transopco, but held that he was not a ‘worker’. It held that Transopco was a “client or customer” of the claimant’s taxi business, meaning that the claimant fell within the applicable statutory exclusion for establishing worker status under s230(3) Employment Rights Act 1996.

Noting that trips though the app accounted for less than 15% of his income, the tribunal found that the claimant could provide his services as frequently or infrequently as he wanted, could dictate the timing of the services and was not subject to the control of Transopco in the way he provided those services. Drivers could be suspended from the app if they frequently cancelled trips, but the tribunal did not consider this to be a significant measure of control to give rise to worker status.

The claimant appealed the tribunal’s decision to the EAT.

EAT decision

The EAT dismissed the claimant’s appeal, upholding the finding of the employment tribunal that he was not a ‘worker’. The tribunal was entitled to rely upon its findings to reach its conclusion that this was not a dependent work relationship, but instead the services provided to Transopco formed part of the claimant’s own business. The jobs that he obtained through the app involved materially the same activities as his own business as a taxi driver, and even though the app offered some incentives and an element of risk-sharing, this did not inevitably point towards a finding of worker status.

The EAT was satisfied that the tribunal had reached sound conclusions and did not consider that it had any basis to interfere with its decision.

Consequences of this decision

This decision may appear at first sight to be surprising, given the trend in recent years for courts and tribunals to find couriers and taxi drivers delivering services through the mechanism of an app to be ‘workers’, most notably of course the Supreme Court’s decision in the Uber case.

The tribunal in this case distinguished the Uber decision on a number of grounds, including the fact that the claimant held his own operating licence and that he had access to the passenger’s name, photo and telephone number and could make direct contact with the passenger before and after the journey.

The EAT’s decision in this case highlights how tribunals will undertake a forensic analysis of the working relationship, meaning that any decision on worker status depends on the facts of each case, as presented by the evidence before the tribunal. 

These articles are from the January 2022 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For further information please contact a member of Birketts’ Employment Team.