Is a taxi driver who spends a small proportion of their time engaged via a taxi app a ‘worker’ of the app operator?
No, said the employment appeal tribunal (EAT) in Johnson v Transopco Ltd (available here).
The test to establish worker status is set out at s230 of the Employment Rights Act 1996 (‘ERA’) (and similarly in other legislation) and is that:
If the individual does not meet that test they will be self-employed.
Mr Johnson started to work as a self-employed black-cab driver in 2014. In 2017 he registered as a taxi driver on Transopco UK Ltd’s (Transopco) ‘Mytaxi’ app. From April 2017 to April 2018 he completed 282 trips via the app, earning a total of £4,560.48 (after commission). During the same period he earned £30,472.45 from other sources as a self-employed driver.
In August 2018, Mr Johnson brought various employment tribunal (Tribunal) claims against Transopco which were dependent on him proving he had worker status, including for holiday pay, unlawful deduction from wages and failure to pay national minimum wage.
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 taxi-driving business. There was no dependent work relationship between Mr Johnson and Transopco. It was clear that the app was not Mr Johnson’s main source of income and that he did not need to sign up to the app in order to work.
Further, the fact that Mr Johnson provided his services infrequently, could choose when he did so and was not controlled by Transopco in the way in which those services were carried out, indicated a level of independence that was consistent with an independent contractor running his own business.
Mr Johnson appealed to the EAT and said that the Tribunal had placed too much emphasis on his other sources of income. This approach risked two drivers using the app having different employment statuses depending on the number of journeys they each performed under the app as a proportion of their overall workload.
The EAT dismissed the appeal. It said that the Tribunal was entitled to find that Mr Johnson’s work for Transopco formed part of his own business by taking into account the proportion Mr Johnson’s income earned via the app. The legal test for worker status requires analysis of the amount of subordination or dependency between the two parties. This will inevitably produce different results depending on the different factual circumstances. In other words, different results involving the same app cannot be ruled out.
This case is a helpful reminder that whether an individual qualifies for worker status depends on the particular facts of that case. Even in relation to different users of the same platform.
The facts to be taken into account can include the proportion of time an individual spends working for the ‘employer’ versus their other work. This could get especially complex to calculate where an individual works through various platforms and/or apps for multiple work providers at any one time.
That said, this decision is good news for employers in that it clarifies that the Supreme Court’s decision in Uber BV and others v Aslam has not set a precedent that all drivers using apps are workers of the app operator. Each case must be judged on its own facts.