The ongoing debate over worker status

Choy Lau examines the implications of a recent employment status ruling by the EAT involving a black cab driver

Over recent years, the employment status of gig economy workers has been a hot topic in employment law, culminating in the Supreme Court's decision last year in Uber v Aslam. In that landmark case, drivers using the Uber app were held to be ‘workers’ of Uber and therefore entitled to basic employment rights such as the right to be paid national minimum wage and paid holidays (among others).

Under English employment law, ‘workers’ fall into two categories:

  1. those working under a contract of employment; and
  2. those working under any other contract ‘whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of the client or customer or any other profession or business undertaking carried on by the individual’.

Uber drivers were found to fall within the definition contained in (b) above. However, the Uber case did not set a precedent that all drivers using apps are workers of the app operator. 

In the recent case of Johnson v Transopco UK Ltd, the Employment Appeal Tribunal (EAT) upheld the employment tribunal's decision that a black cab driver using the Mytaxi app to pick up fares, in addition to picking up passengers on the street, was not a worker of the app operator. 

In this case, the claimant sought to argue that his circumstances were substantially the same as Uber drivers and therefore he was a worker of the app operator for the periods of time that he undertook work via the Mytaxi app. The tribunal disagreed and instead found that the claimant was working as a self-employed taxi driver and that the app operator was a client or customer of his taxi-driving business. 

In the Uber case, Uber had a high degree of control over the drivers, including setting the route to take, the fare charged, performance standards and by restricting communications between the drivers and passengers. By contrast, the claimant in Johnson did not have these constraints. 

The claimant determined the route that he took on any given job. While the app had a recommended minimum fare, the claimant was not obliged to charge it (and in fact did not, without any adverse consequences). The fare was instead calculated by the claimant's taximeter. While the app had a rating system, there were no consequences associated with poor ratings (whereas in Uber, the driver could be suspended from using the app if ratings were low). When the claimant accepted a job via the app, he was given contact details of the passenger and there was no restriction imposed by the app on the claimant contacting the passenger after the trip was concluded. 

Other determining factors in this case, were the fact that the claimant was not in a position of subordination to the app operator and also that he was not reliant on the app to make his living. Between April 2017 and April 2018, he completed 282 trips via the app (earning £4,560.48). In the same period, he earned £30,472.45 from his own black-cab service. He chose not to accept 75 per cent of the jobs offered via the app and cancelled 35 per cent of the trips accepted. Based on this, the tribunal held that he was not in a dependent work relationship with the app operator. 

Overall, the tribunal found (and the EAT upheld) that the claimant was acting as an independent contractor in business on his own account and therefore not a ‘worker’ of the app operator. 

This case does not set any new precedent in employment law, but it is a good reminder that worker status is determined by looking at all of the relevant circumstances in a case. The Uber case does not set any minimum factual benchmark for worker status, nor does it set a precedent that all drivers using apps are workers of the app operator. Each case must be judged on its own facts and there are many factors and tests to consider when determining worker status.

Choy Lau is a senior associate at Wedlake Bell