Employment status: Taxi driver working through an app was not a worker

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Employment status: Taxi driver working through an app was not a worker

Published 4 February 2022

The EAT has upheld an employment tribunal decision that the operator of an app was a ‘client or customer’ of a driver’s business.  The driver did not therefore engage with the operator as a worker.

THE FACTS

To be a “worker”, an individual must provide personal services under a contract with another party.  However, if that other party is a client or a customer of a profession or business undertaking carried on by the individual, the individual will not be a worker.

Mr Johnson was a London black-cab driver, initially working full time in business on his own account.  After about three years, he registered as a driver on Transopco UK Ltd’s app, the “MyTaxi App”, but also continued to work in business on his own account.  During the year that he used the MyTaxi App, he completed 282 trips via the App, at a total value of £4,560.48.  In the same period, he earned £30,472 through other sources.  He did fewer than one and half trips per day via the MyTaxi App.

Mr Johnson brought claims in the employment tribunal that were dependent on his being a worker.  The tribunal found that he was not a worker because, although he had an obligation to perform services personally, Transopco was a “client or customer” of Mr Johnson’s driving business.  His claims therefore failed.  He appealed unsuccessfully to the EAT, which upheld the tribunal’s judgment. 

The tribunal’s factual findings, which the EAT found to be soundly and thoughtfully reasoned, were that Mr Johnson could provide his services as infrequently or as often as he wanted, that he could dictate the timing of the services, and he was not subject to Transopco’s control.  He could be suspended for excess cancellations, but the tribunal did not consider that sanction to be a significant measure of control when weighed against everything else.  Some incentives and risk-sharing were offered by Transopco, but the courts did not consider that this pointed inexorably to worker status. 

WHAT DOES THIS MEAN FOR EMPLOYERS?

This case underlines that worker status cases will always be very fact specific.  The courts in the Uber case (on which we reported here), which was also about drivers who engaged with an operator via an app, came to a different decision.  The EAT commented that it is possible that different outcomes may be reached in different cases involving the same app.

Mr Christopher Johnson v Transopco UK Ltd

Authors

Hilary Larter

Hilary Larter

Leeds

+44 (0)113 251 4710

Zoë Wigan

Zoë Wigan

London - Walbrook

+44 (0)20 7894 6564

Ceri Fuller

Ceri Fuller

London - Walbrook

+44 (0)20 7894 6583

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