United Taxis Limited v Comolly & Another
Welcome back to our case of the week. Last week we had a look at a few topics in our newsletter, including positive discrimination in the military and sexual harassment claims against MPs. This week we are looking at an ongoing area of law that receives occasional highlights in the news – taxi drivers and their employment status.
United Taxis Limited was described as a co-operative business, where the company is owned by multiple member-shareholders. Each member-shareholder would pay a subscription fee in order to register vehicles and gain access to the work provided by the company, as well as provide vehicles to other drivers. While the agreement between the company and the member-shareholders set out various requirements about dress code, compliance with byelaws etc, it did not set out any formalities between a member and those engaged under them.
Mr Comolly was a taxi driver, he applied to the company to become one of their drivers and was put in contact with a member-shareholder, Mr Parkinson. The terms on which he began driving were not provided to the Tribunal. In 2014 Mr Comolly ceased driving for Mr Parkinson and began working as a driver for Mr Tidman. No formal agreement was made between the parties about how this arrangement would function. In order to drive directly for the company, one would need to be a member-shareholder; to drive under Mr Tidman, Mr Comolly would require an agreement between himself and Mr Tidman, neither of which happened.
In the first hearing, the Tribunal found that: both Claimant and Respondent labelled the Claimant as self-employed, there was no written contract between the two parties. Mr Tidman was the owner of the vehicle which Mr Comolly drove, and that various aspects of working hours and insurance were agreed between the parties. The fares were split equally between the two, with payslips produced at the end of each working day. The question arose as to what the Claimant’s employment status was.
Whilst the Tribunal did set out the statutory definitions of ‘Employee’ and ‘Worker’, an accurate summary is given by Baroness Hale as: ‘the effect of the statutory definitions of employee and worker is that employment law distinguishes between three types of people: those employed under a contract of employment; those self-employed people who are in business of their own account and undertake work for their clients and customers; and an intermediate class of workers who are self-employed but who provide their services as part of a profession or business undertaking carried on by someone else’.
Referencing the decision in the recent Uber case the Tribunal decided that Mr Comolly was an employee of Mr Tidman and a worker for the company. An appeal was brought to the Employment Appeal Tribunal on three grounds. The first argued that a person could not simultaneously be a worker and an employee for the same work as this was not legally possible. The second, that the Tribunal had erred by implying a contract between the Claimant and the company. Finally, that the Tribunal had failed to properly take into consideration the factual points raised which pointed away from an employee/worker relationship.
The EAT agreed mostly with the appeal and substituted the original decision, agreeing that dual employment was not possible, instead finding that Mr Comolly was a worker for Mr Tidman with no contractual relationship between him and the company.
Takeaway Points
This case highlights a few technical points when it comes to employment status and how it is defined.
The first is the importance of case law in understanding the legal background of a claim. The EAT alone refers to several keystone cases that are crucial to understanding the outcome of these cases and how the black letter law is interpreted.
Whilst being a worker instead of an employee does not afford you the same protection from unfair dismissal, or other rights provided for in the Employment Rights Act, a worker is covered under the definition of ‘in employment’ under the Equality Act, protecting them from discriminatory behaviour, in a way that would not be possible if they were considered entirely self-employed.
This also shows how employment status can be determined by a Tribunal after the fact based on the factual circumstances of the case. Simply because someone is labelled as an employee/worker/self-employed does not mean that the label aligns with the reality of the situation.
If you or someone you know needs assistance with understanding employment status, or any of the issues raised above, please contact a member of our team, who will be able to assist you.
