The Employment Appeal Tribunal (EAT) has held in United Taxis Ltd v Comolly and anor that a taxi driver who worked as a sub-contractor for a shareholder member of the taxi company could not be his employee whilst at the same time operating as a worker for the company in respect of the same work.
Basic facts
United Taxis, a co-operative taxi company in Bournemouth, is owned by shareholder members who are allowed to operate as drivers themselves and/or engage non-members to drive their vehicles. Although the company was not involved in these arrangements, drivers had to register with them and adhere to certain byelaws, such as abiding by the organisation’s dress code and accepting restrictions on doing private work. It could also impose penalties on drivers for not accepting certain jobs under the provisions of its training manual.
Mr Comolly started driving for one of the shareholder members, Mr Tidman, on a self-employed basis in 2014. Mr Tidman owned, insured and maintained the vehicle although Mr Comolly contributed to those costs. He drove the car five days a week between certain hours and split the fares 50:50 with Mr Tidman. They had no written agreement, but Mr Comolly was described as self-employed.
When the relationship ended, Mr Comolly lodged various claims arguing that he was either an employee/worker of United Taxis or of Mr Tidman.
Tribunal decision
The tribunal held that Mr Comolly was Mr Tidman’s employee. Firstly, he paid him 50 per cent of the fares in return for which Mr Comolly operated the taxi, creating mutuality of obligation between them. Secondly, he owned the taxi on which Mr Comolly depended for his work. Thirdly, Mr Tidman determined the hours that he worked. Fourthly, Mr Comolly had to provide his services personally.
It also found that he was a worker of United Taxis on the basis that there was an implied contract between them regulated by the provisions in the training manual and the byelaws.
Both Mr Tidman and United Taxis appealed.
EAT decision
Allowing both appeals, the EAT held that the only contract between Mr Comolly and the company was a “collateral contract” to the main agreement with Mr Tidman. As part of this agreement, he had promised to abide by United Taxis’ rules and byelaws as a condition of being allowed to operate as a sub-contractor for a shareholder. As such, he was neither a worker nor an employee of the company.
It also disagreed that Mr Comolly could simultaneously be an employee of Mr Tidman and a worker of United Taxis. As the Court of Appeal and the EAT had pointed out in several cases, it was “problematic” to hold that someone could be an employee of two different employers in respect of the same work at the same time. Although the problems generated by this situation might not always be insuperable, the judge could not see how they could be overcome in this case.
Finally, it held that the tribunal had failed to satisfactorily explain how the extent of the control exercised by Mr Tidman over Mr Comolly had led it to conclude that the relationship was one of employer and employee. In particular, it had not explained the distinction between aspects of how Mr Comolly worked and what he could or could not do during the times when the taxi was available to him. Although Mr Tidman determined these, certain aspects were also dictated by United Taxis. The tribunal should have considered the difference between the two when assessing their significance for his overall status.
Given the tribunal’s findings of fact, it concluded that Mr Comolly was a worker of Mr Tidman.