Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University. As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal. At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.
The claimant is a black cab taxi driver in London. He has been in this position since 2014. In 2017 the claimant registered on the respondent’s ‘Mytaxi’ app. Between April 2017 and April 2018 he completed 282 trips through the app and earned £4,560.48. Aside from that he continued to work as a taxi driver on his own account and earned c. £30,000 through those other sources. The claimant brought a claim seeking worker status under Section 230 of the Employment Rights Act 1996.
The Tribunal examined the relationship between the claimant and the respondent. It was found that there was a contract between the two and the claimant had an obligation of personal service to the respondent. However, despite that need for personal service it was held that the claimant did not have worker status. It was found that the respondent was, in fact, a client or customer of the claimant and his taxi-driving business. The reason for this was based upon the following reasons:
The claimant could provide his services to the respondent as frequently as he wished.
The claimant could dictate the time he was able to provide the services.
The claimant was not subject to any control by the respondent as to how his services were undertaken.
The claimant only carried out, on average, 1.5 trips per day. This represented less than 15% of his overall income.
One issue that did arise was that the respondent had suspended the claimant from the app for excessive cancellations. However, this was not regarded as being control to the extent that the claimant would be regarded as a worker. The claimant did appeal this decision.
The argument on appeal was that the Tribunal placed too great an emphasis on the claimant’s activities outside of the app. The EAT found that the Tribunal was entitled to rely upon its findings and that it could look at the proportion of work derived through the app and other sources. This went to the heart as to whether the work with the respondent was part of his own business. As a result, the decision to refuse worker status was upheld by the EAT.
Practical Lessons
This case demonstrates another twist when it comes to employment status in the gig economy. The cases involving employment status are factually based considering the numerous factors to be considered. This decision differs from those such as Uber v Aslam on the basis of examining the claimant’s whole range of work as a taxi-driver. Therefore, as it was only a small part of his work it was merely part of his business. The issue that may arise is where the limit is between work as part of a business and being a worker for one of these gig economy businesses.
https://www.bailii.org/uk/cases/UKEAT/2022/6.html
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