CHRISTOPHER JOHNSON v TRANSOPCO UK LTD

For limb (b) worker status under section 230(3) of the Employment Rights Act 1996, the question is whether the other contracting party is a client or customer of the individual’s own business. The inquiry is evaluative and turns on all the circumstances. There is no single decisive test.

Work undertaken outside particular engagements, including its scale and the absence of mutual obligations between engagements, may shed light on dependency or subordination while work is performed. It does not preclude worker status. Control, financial risk, integration and the practical reality of the relationship must be assessed in the round. Different outcomes for users of the same platform may properly follow from materially different facts.

The claimant was a licensed London black-cab driver who used the respondent’s ride-hailing application between 2017 and 2018 while continuing to obtain most of his taxi work independently. He brought claims for which worker status was required.

The Employment Tribunal found that passengers contracted with the respondent as principal and that the claimant was obliged to perform accepted jobs personally. It nevertheless held that the respondent was a client or customer of the claimant’s taxi-driving business, so that he was not a limb (b) worker.

The claimant appealed, challenging the Tribunal’s treatment of work outside the application, financial risk, control, integration, the regulatory regime and the adequacy of its reasons.

1. Appeal dismissed. The Tribunal was entitled to conclude that the respondent was a client or customer of the claimant’s taxi business and that he was not a limb (b) worker under section 230(3) of the Employment Rights Act 1996.

2. [2016] ICR 721 remained binding and authoritative. Although the ultimate question concerns the relationship while work is performed, the absence of mutual obligations between assignments may, depending on the facts, illuminate the individual’s independence or lack of subordination during an assignment. It was therefore permissible to consider the claimant’s limited use of the application, income from other taxi work, rejection of offered jobs and cancellations. This did not impose a numerical threshold for worker status.

3. The question whether work performed for the putative employer forms part of an existing profession or business undertaking is one of fact and overall impression. The Tribunal was entitled to find that the essential activity of the claimant’s business was conveying passengers for reward, regardless of whether a fare was obtained by street hail or through the application. Whether a particular application booking amounted to plying for hire was irrelevant to that evaluative question.

4. The Tribunal had lawfully assessed control, risk and integration in the round. It was entitled to attach weight to the claimant’s freedom to choose when and how often to work, his ability to pursue street-hail work, the limited control over performance, and the regulatory and practical setting of fares. The respondent’s standard terms, customer ratings, cancellation sanctions, risk-sharing arrangements and marketing material did not compel worker status.

5. The reasons were adequate. Read as a whole, the Tribunal’s decision identified the applicable law, addressed the salient evidence and explained why the claimant was not in a relationship of dependency or subordination and why the application jobs formed part of his own taxi business.

• Employment Appeal Tribunal: appeal dismissed: [2022] EAT 6.
• Employment Tribunal: held that the claimant had a personal-service obligation but that the respondent was a client or customer of his taxi business; consequently, he was not a limb (b) worker.