In an unusual case - Mingeley v Pennock And Ivory t/a Amber Cars (2004, IRLR 373) - the Court of Appeal has decided that race discrimination legislation may not apply to private car hire drivers.
What prompted the complaint?
John Mingeley, who is black, worked as a private hire taxi driver in Leeds. He had a contract with Mr Pennock and Mr Ivory, the owners of Amber Cars, whereby Amber Cars allocated calls to him through a radio and computer system that they made available to him. In return, Mr Mingeley paid them £75 per week.
It was up to him what hours he worked or whether he worked at all. He did not have to pay anything to Amber Cars from the fares he collected - their income came from the weekly payments from Mr Mingeley and a substantial fleet of other drivers. However, if Mr Mingeley worked, he was required to wear the firm's uniform and to adhere to a scale of charges that they set. He could not let anyone else drive his car (without paying another £75) and he was subject to a complaints procedure regulated by Amber Cars.
In November 2001, following the termination of his contract with Amber Cars, Mr Mingeley complained that the owners had racially discriminated against him in allocating work.
Was he an employee?
The first issue to resolve was whether he was an employee. In other words, whether the relationship fell within s78(1) of the Race Relations Act 1976 (RRA), which defines 'employment' as 'employment under a contract of service or of apprenticeship or a contract personally to execute any work or labour'.
Mr Mingeley claimed that the relationship was pursuant to a contract to execute any work or labour. If he could convince a tribunal that he was an employee, then the firm would have to defend itself against his claim of race discrimination.
What did the tribunal think?
The employment tribunal dismissed the application. It said that 'it is inconsistent with an obligation to execute work or labour that a party is free to work or not work as he wishes, free to take holidays as and when he wishes without notification to any other party, free to decide that he is sick on any particular day without notification and free to work whatever hours he wishes on any particular day that he does work, without sanction of any sort on the part of the 'employer'.'
The tribunal went on to say that, even if he was under an obligation personally to 'execute work', his claim would still fail because that obligation was not the dominant purpose of the contract. Instead, it was to provide an efficient car hire service to customers of Amber Cars.
The appeal tribunal dismissed his appeal against that decision on the basis that there was no mutuality of obligation between the parties.
What did the Court of Appeal decide?
The Court of Appeal upheld this approach, and dismissed Mr. Mingeley's appeal. In doing so, the Court missed a chance to extend the protection available under the RRA to a vulnerable class of workers by saying that it was up to Parliament to sort out the exclusion of people like Mr Mingeley.
The Court said that it was obvious from the wording in s78 and from previous judgments that the applicant had to establish that his contract placed him under an obligation 'personally to execute any work or labour'. There was no evidence that he was ever under such an obligation. He was free to work or not to work at his own whim or fancy. His obligation was to pay the taxi firm £75 per week and he could then decide whether to work or not. The fact that there was no obligation placed him beyond the reach of s78.