F v J

The Employment Appeal Tribunal allowed the appeals of United Taxis and Mr Tidman against the tribunal's preliminary findings on employment status. The EAT held that the tribunal had erred in implying that Mr Comolly was a worker of United Taxis and in failing to confront the problem of dual simultaneous status (being a worker of United Taxis and an employee of Mr Tidman) for the same work. The EAT found that passengers contracted with United Taxis, that the driving services were performed for Mr Tidman who subcontracted to Mr Comolly, and that it was unnecessary to imply a contract under which Mr Comolly provided services directly to United Taxis. The tribunal had also erred in its analysis of control and mutuality in relation to the supposed employment contract with Mr Tidman; the EAT substituted a finding that Mr Comolly was a worker of Mr Tidman (and an employee for Equality Act purposes) during the periods when he had use of Mr Tidman’s taxi.

Background and procedural posture:

• The claimant, Mr Comolly, a taxi driver, brought claims including unfair dismissal, wrongful dismissal, unlawful deduction from wages, unpaid holiday pay and age discrimination against United Taxis Limited and a shareholder, Mr Tidman. The employment tribunal (Employment Judge D Harris) decided preliminary issues, finding that the claimant was a worker of United Taxis and an employee of Mr Tidman. Both United Taxis and Mr Tidman appealed to the Employment Appeal Tribunal.

Factual matrix:

• United Taxis operates a private-hire booking and dispatch system (iCabbi) and supplies byelaws and a Drivers' Training Manual for registered drivers. Drivers accessed United Taxis work either by becoming shareholders, paying a circuit fee, or working through shareholders. The tribunal found that the claimant had always accessed United Taxis work through shareholders and that fares for United Taxis jobs were contracted with United Taxis.
• The tribunal found that the claimant drove a taxi provided by Mr Tidman and that fares were effectively split 50:50 between them; the exact terms of earlier arrangements with different shareholders were not established.

Issues before the EAT:

• (i) Whether the tribunal was correct to find that the claimant was a worker of United Taxis by implying a contract with United Taxis; (ii) whether the tribunal was correct to find that the claimant was an employee of Mr Tidman; (iii) whether the tribunal could permissibly find the claimant simultaneously employed/working for two parties in respect of the same work.

Reasoning and conclusions:

• The EAT accepted the tribunal's finding that passenger contracts were with United Taxis and that the actual driving was performed by the claimant. However the tribunal erred in implying a contract under which the claimant provided driving services directly to United Taxis: the arrangements could be explained by a collateral implied promise to obey United Taxis' rules as a condition of access to work through shareholders, rather than by a contract of personal service to United Taxis.
• The tribunal also failed to grapple with the legal and practical difficulties of recognising simultaneous status for the same work (dual employment/dual worker status). The EAT treated the suggested dual status as legally untenable on these facts and concluded that any employment protections required by statute would be provided by recognising the claimant's status in relation to the shareholder through whom he worked.
• As to Mr Tidman, the EAT found the tribunal had not sufficiently analysed the source, nature and extent of control and mutuality of obligations. Having considered the tribunal's factual findings, the EAT substituted a finding that the claimant was a worker of Mr Tidman (and for Equality Act purposes an employee) for the periods when he had use of Mr Tidman’s taxi.

Remedy and disposition:

• The appeals were allowed. The EAT set aside the tribunal's finding that the claimant was a worker of United Taxis and substituted findings as to his status vis-à-vis Mr Tidman.

Appeal allowed. The EAT held that the tribunal erred in implying a worker contract between Mr Comolly and United Taxis and in failing to confront the impossibility on the facts of simultaneous status for the same work. The tribunal had also inadequately analysed control and mutuality in relation to Mr Tidman; the EAT substituted a finding that Mr Comolly was a worker of Mr Tidman (and an employee for Equality Act purposes) during periods when he had use of Mr Tidman’s taxi.

Appeal from the Employment Tribunal (preliminary hearing, Employment Judge D Harris). Decision of the Employment Appeal Tribunal delivered as [2023] EAT 93.