Mingeley v Pennock & Ivory (t/a Amber Cars)

For a contract to fall within the extended definition of employment in section 78 of the Race Relations Act 1976, it must impose on the claimant a contractual obligation personally to execute work or labour. Freedom to work or not to work at will is inconsistent with that requirement. Work performed under collateral contracts with customers does not satisfy it. Where such an obligation exists, the contract’s dominant purpose must also be personal execution of work or labour. Although the dominant-purpose test may be difficult to apply, it was established by binding authority. Any wider protection for comparable private-hire arrangements required legislation.

A private-hire taxi driver claimed racial discrimination after his contractual arrangement with the operators of Amber Cars ended. The arrangement required him to pay a weekly fee for access to the operators’ booking system, but he owned the vehicle and remained free to work or not work without notice or sanction.

The Employment Tribunal held that the arrangement was not a contract personally to execute work or labour within section 78(1) of the Race Relations Act 1976. The Employment Appeal Tribunal upheld that decision, applying the absence of mutual obligations and the dominant-purpose approach. The driver appealed, arguing that neither mutuality nor dominant purpose was required. The central issue was whether the arrangement brought him within the statutory definition of employment.

1. Appeal dismissed. Maurice Kay LJ held that the Employment Tribunal and Employment Appeal Tribunal had correctly concluded that the arrangement was outside section 78 of the Race Relations Act 1976.
2. Section 78(1) required the claimant to establish a relevant contract which placed him under an obligation personally to execute work or labour. The driver’s only contractual obligation to Amber Cars was to pay the weekly fee for access to its computer system. He was free to work or not work at any time. That absence of an obligation to work placed him outside the statutory definition.
3. Any work undertaken for passengers was collateral to, and not work under, the contract with Amber Cars. It therefore could not satisfy section 78(1).
4. The Employment Tribunal had also been entitled to apply the dominant-purpose test stated in Mirror Group Newspapers Ltd v Gunning [1986] IRLR 27 and adopted in Kelly v Northern Ireland Housing Executive [1999] 1 AC 428. The test asks whether the obligation personally to execute work or labour is the dominant purpose of the contract. It was supported by a consistent line of authority, including Legal Services Commission v Patterson [2003] EWCA Civ 1558, and was binding on the Court of Appeal.
5. The court rejected the submission that Patterson had been decided per incuriam by failing to consider later statutory provisions in different terms. It also rejected reliance on the two EC Council Directives as an aid to construing a long-standing domestic provision which had received authoritative judicial interpretation and remained unamended.
6. The court questioned whether Parliament had intended to exclude arrangements of this kind, but stated that their inclusion could now be achieved only by legislation. Permission to appeal to the House of Lords was refused. The appellant was ordered to pay the respondents’ costs, subject to detailed assessment.

• Court of Appeal (Civil Division) — [2004] EWCA Civ 328: appeal from the Employment Appeal Tribunal dismissed unanimously; permission to appeal to the House of Lords refused.
• Employment Appeal Tribunal — judgment delivered 9 June 2003: upheld the Employment Tribunal’s conclusion that the arrangement was not employment within section 78.
• Employment Tribunal — preliminary jurisdiction issue: held that the contract was not one personally to execute work or labour.