C Johnson v GT Gettaxi (UK) Ltd

Worker status under section 230(3)(b) of the Employment Rights Act 1996 requires application of the statutory language to the true relationship. Concepts such as control, subordination and integration may assist, but are not separate legal tests.

Whether a person carries on a business undertaking on their own account, and whether work for the putative employer forms part of it, is a fact-sensitive overall assessment. An Employment Tribunal may consider the individual’s wider business activities, including activity between assignments. An appellate court will not reweigh the factors where the tribunal applied the correct law and reached a permissible evaluative conclusion.

The claimant was a licensed London black-cab driver who used the respondent’s booking application between 2015 and 2017. He applied to rejoin it in 2020 and alleged that the refusal was because he had made protected disclosures.

The Employment Tribunal at London Central held that he was not a limb (b) worker. It found that he operated a black-cab business on his own account and used the application as an additional means of obtaining work. The claimant appealed, contending that the Tribunal had misapplied Uber, had given undue weight to immaterial matters, and had provided inadequate reasons.

The central issue was whether the Tribunal’s evaluative conclusion on worker status disclosed an error of law or perversity.

1. Appeal dismissed. The Employment Tribunal’s conclusion that the claimant was not a worker was open to it on the facts found.

2. The applicable inquiry was the statutory one under section 230(3)(b) of the Employment Rights Act 1996. The Tribunal had to determine whether there was a contract involving personal service and, if so, whether the claimant carried on a profession or business undertaking of which the respondent was a client or customer. Although the Tribunal had not expressly addressed every stage, there was no appeal challenge to the assumed contract and personal-service elements, or to the client-or-customer issue.

3. Worker-status authorities supply legal propositions, not fact patterns to be matched. Control, subordination and similar concepts are aids to applying the statutory language, rather than free-standing tests. The question whether a person operates a business undertaking on their own account is a fact-and-impression assessment based on all relevant circumstances.

4. The Tribunal was entitled to distinguish the private-hire context in Uber. The claimant was a regulated black-cab driver, could ply for hire and use competing applications, and his fares and many service obligations were governed by the applicable regulatory regime. It was permissible to treat his wider activity, including the limited scale of his work through the application, as part of the overall assessment. The Tribunal did not impose a requirement that work for the respondent form a large proportion of earnings.

5. The Tribunal had addressed the material factors concerning fares, imposed terms, acceptance and cancellation, routes, communications and the application’s going-home feature. It was not required to mention every item of evidence or submission. Read fairly and as a whole, its reasons adequately explained why it found that the claimant was conducting his own business and was not subordinate to the respondent.

• Employment Appeal Tribunal: dismissed the claimant’s appeal: [2024] EAT 162.
• Employment Tribunal, London Central: held that the claimant was not a worker and dismissed the claims for want of jurisdiction.