- Written by
- Faye Shortall, Solicitor
The employment status of individuals is a matter to be determined by the Employment Tribunal and, when doing so, there are various factors that the Tribunal will look at. Whilst the terms of any contract will be considered, the Tribunal will always look at the true nature of the working relationship between the parties and this will form the basis of any decision made.
In Johnson v Transopco UK Ltd, the claimant worked as a full time black-cab driver and registered as a driver on TUK Ltd’s Mytaxi app. He subsequently pursued claims in the Employment Tribunal against TUK Ltd and these claims depended on him being a ‘worker’, as opposed to a self-employed individual, as defined in the Employment Rights Act (ERA). S230 of the ERA defines a worker as:
An individual who has entered into or works, or worked, under a contract of employment, or any other contact, whether express or implied and whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party of the contract whose status is not that of a client or customer of any profession or business undertaking carried on by the individual.
The Tribunal found that, whilst a contract did exist between TUK Ltd and the claimant, TUK Ltd was a ‘client or customer’ of the claimant. Particular elements of the relationship that the Tribunal considered were that the claimant could provide his services as infrequently or as often as he wanted, could dictate the timing of those services and was not subject to control by TUK Ltd in any way. Furthermore, the Tribunal also considered the claimants activities when not working via the App by looking at the percentage of his overall income generated by the number of trips that the claimant performed via the App, which was less than 15%. On appeal, the claimant argued that the Tribunal had placed ‘impermissible focus’ on the claimant’s activities when he was not working for the respondent. It was held by the Employment Appeal Tribunal, however, that the Tribunal was entitled to rely on its findings in respect of the claimant’s activities, and income earned, when not working via the App when considering whether the claimant’s work for the respondent formed a part of his own business. The claimant’s appeal was therefore dismissed.
The fact that the Tribunal looked at the claimant’s activities when not engaged via the App when reaching its conclusion, i.e. that the relationship between the claimant and the respondent was not a dependent work relationship, essentially means that cases involving use of the Mytaxi App could reach different conclusions when determining the employment status of individuals.
This case clearly demonstrates that the Tribunal will consider all available factors when determining the employment status of a claimant and, further, supports the fact that businesses and individuals need to be aware that the terms of any contract between them are not conclusive in respect of determining employment status.
If you require assistance or advice on the contents of this article, please contact the Employment Team at Thackray Williams LLP 020 8290 0440.
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