Johnson v Transopco UK Limited

The Employment Appeal Tribunal dismissed the claimant's appeal against an employment tribunal's preliminary finding that he was not a limb (b) worker of the operator of the Mytaxi App. The tribunal had held that, while passengers contracted with the respondent as principal and the claimant owed a personal obligation to perform jobs allocated through the App, the respondent was a client or customer of the claimant's existing black-cab business under section 230(3)(b) Employment Rights Act 1996. The EAT found no error of law or perversity in the tribunal's assessment of control, integration, financial risk allocation, or the relevance of the licensing/regulatory framework and upheld its reasoning, having regard to authorities including Windle, Hospital Medical Group v Westwood, Autoclenz and Uber.

Background and procedural posture.

The claimant was a licensed London Hackney carriage driver who registered to use the respondent's Mytaxi driver App in 2017 and completed a modest number of fares via the App until his removal in April 2018. In August 2018 he brought claims including protected-disclosure detriment, working-time/holiday pay, unlawful deduction of wages and failure to pay the national minimum wage, all of which required him to be a "worker" under section 230(3) Employment Rights Act 1996. The employment tribunal (EJ Balogun) held in a reserved preliminary decision (July 2020) that passengers contracted with the respondent as principal and that the claimant was not a limb (b) worker because the respondent was a client or customer of his taxi business. The claimant appealed to the EAT on the limb (b) point only.

Nature of the claim / relief sought.

• The claimant sought workplace rights dependent upon worker status (protection for whistleblowing detriment, holiday pay/working time entitlements, unlawful deductions and national minimum wage claims).

Issues framed by the court.

• Whether the claimant met the definition of "worker" in s.230(3)(b) ERA 1996 (the "client or customer" exception).
• How the tribunal should treat facts about the claimant's wider practice, allocation of financial risk, control exercised by the respondent, and the degree of integration into the respondent's business when deciding limb (b) status.
• The relevance, if any, of the licensing/regulatory regime and the proper application of authorities such as Windle, Autoclenz, Bates van Winkelhof, Hospital Medical Group v Westwood and Uber.

Court's reasoning and conclusions.

The EAT analysed the tribunal's factual findings (frequency and value of App trips, acceptance and scrub rates, contractual terms, allocation of payment and risks, and evidence of control and performance monitoring). It held that the tribunal lawfully and rationally concluded that the claimant carried on a taxi business on his own account and that the jobs undertaken via the App formed part of that business rather than indicating a dependent, subordinate working relationship with the respondent. The EAT endorsed the tribunal's reliance on Windle about the relevance of what happens outside periods of work, found no impermissible "spot-the-difference" approach to Uber, and accepted that the tribunal had adequately considered the licensing/regulatory context and the plying-for-hire point and permissibly judged it not to be decisive. The tribunal's reasoning met Meek standards and its evaluative judgment was not perverse. The appeal was dismissed.

Appeal dismissed. The EAT held that the employment tribunal had not erred in law or reached a perverse conclusion: the tribunal’s factual findings supported the conclusion that the respondent was a client or customer of the claimant’s taxi business and that the claimant was not a limb (b) worker under section 230(3)(b) ERA 1996. The tribunal had correctly considered control, integration, financial risk, the relevance of mutuality of obligation outside assignments (Windle) and the licensing/regulatory context, and had given adequate reasons.

Appeal from the Employment Tribunal (reserved preliminary decision by Employment Judge Balogun, July 2020) on worker status under section 230(3) Employment Rights Act 1996; Employment Appeal Tribunal judgment [2022] EAT 6 dismissing the appeal. Transopco UK Ltd was substituted as respondent on 1 July 2020 following acquisition of Mytaxi's assets.