Mingeley v Pennock (t/a Amber Cars)

The Court of Appeal dismissed an appeal against decisions of the Employment Tribunal and the Employment Appeal Tribunal that the relationship between a private hire taxi driver and a private hire operator was not "employment" within the extended definition in section 78 of the Race Relations Act 1976. The court held that, on the plain words of section 78, a claimant must show a contract imposing an obligation personally to execute work or labour; where no such contractual obligation exists the worker falls outside the section. The court also endorsed the established two-stage approach derived from Mirror Group Newspapers v Gunning and later authorities: (i) is there an obligation personally to execute work or labour and (ii) if so, is that obligation the dominant purpose of the contract. The Tribunal and the Employment Appeal Tribunal had correctly found no contractual obligation to perform work personally and, on that basis, the appeal failed.

Background and parties: The appellant, a private hire taxi driver, had for about four years an unwritten arrangement with Amber Cars under which he provided services using his own vehicle, paid a weekly fee to access the operator's booking system and complied with certain codes (uniform, scale of charges). On termination of that arrangement he brought a claim of racial discrimination under the Race Relations Act 1976.

Procedural history: The Employment Tribunal determined as a preliminary issue that the contract was not one "personally to execute any work or labour". The Employment Appeal Tribunal, by a judgment delivered on 9 June 2003, upheld that conclusion. Permission to appeal to the Court of Appeal was granted on 29 August 2003.

Relief sought: The appellant sought to bring a discrimination claim under the Race Relations Act 1976 by establishing that he was in "employment" as defined in section 78.

Issues framed:

• whether the appellant's contract imposed any obligation personally to execute work or labour (including whether mutuality of obligation was required);
• whether, if such an obligation existed, it was the dominant purpose of the contract (the "dominant purpose" test from Mirror Group v Gunning).

Court’s reasoning: The Court examined the contractual arrangements found by the Tribunal: freedom to work when he chose, no obligation to accept fares, no requirement to notify absence, obligation to pay £75 per week for access, and that work for passengers was collateral to the contract with Amber Cars. The court applied the established authorities (Mirror Group v Gunning, Kelly v Northern Ireland Housing Executive and Legal Services Commission v Patterson) and concluded that the appellant had failed to demonstrate any contractual obligation personally to perform work for Amber Cars; that absence of such an obligation placed him outside section 78. The court rejected submissions that Patterson was per incuriam or that EU Directives should alter the construction of the 1976 Act. Although the court observed that Parliament might not have intended to exclude such arrangements from protection, any remedy lay with Parliament, not the court.

Disposition: Appeal dismissed; appellant to pay respondents' costs of the appeal; application for permission to appeal to the House of Lords refused.

Appeal dismissed. The Court held that under section 78 of the Race Relations Act 1976 a claimant must show a contract imposing an obligation personally to execute work or labour; no such obligation was found on the facts and the Employment Tribunal and Employment Appeal Tribunal had correctly applied the law, including the "dominant purpose" test derived from Mirror Group v Gunning and related authorities. Any change to include arrangements of this type in the statute would require legislation.

The claim began in the Employment Tribunal where a preliminary issue was decided in favour of Amber Cars (that the relationship was not a contract personally to execute work or labour). The Employment Appeal Tribunal, in a judgment delivered on 9 June 2003 (reported in the judgment), upheld the Tribunal's decision. Permission to appeal to the Court of Appeal was granted on 29 August 2003 by Kennedy and Peter Gibson LJJ. The Court of Appeal dismissed the appeal on 9 February 2004 ([2004] EWCA Civ 328).