The Employment Appeal Tribunal (EAT) has upheld a tribunal decision in Johnson v Transopco UK Ltd that a self-employed London black cab driver, who also sourced additional work from the Mytaxi app, was not a worker of the company operating the app. Instead, he was in business on his own account and Transopco was his client or customer.
From 2014, Mr Johnson worked full time as a black-cab driver in London, regulated by Transport for London (TfL). In February 2017, he downloaded the driver version of the Mytaxi app operated by Transopco Ltd but did not start to actively use it until the end of July that year. From then until April 2018, he used it to source work separately from his role as a self-employed black-cab driver.
Passengers using the app could pre-book a journey, but either the driver or the passenger could “scrub” (cancel) the booking. A driver who “scrubbed” five or more jobs could have their account suspended. Between April 2017 and April 2018, Mr Johnson completed 282 trips via the app, at a total value of £4560.48 after commission, as opposed to his earnings of £30,472.45 through other sources. His scrub rate, meanwhile, was 35.4 per cent against a London average of 7.9 per cent. He was removed from the app in April 2018.
In August 2018, Mr Johnson lodged a number of tribunal claims which required him to show that he was a worker, as opposed to an independent contractor under section 230(3) of the Employment Rights Act (ERA) 1996.
The tribunal found that the passengers contracted with Transopco. The services were then delivered by Mr Johnson under a separate contract he had with the company and as such he was required to provide personal service. However, the tribunal found that Mr Johnson was under no obligation to accept jobs via the app, and he was free to pick up passengers who hailed him on the street.
The tribunal also noted that Mr Johnson derived less than 15 per cent of his overall income from the app, which meant Transopco was not his main source of income. As he did not need to sign up to the app in order to earn money, the tribunal concluded that it was not a dependent work relationship.
Nor did Transopco have much control over how Mr Johnson did his work, unlike the situation in Uber v Aslam (weekly LELR 717). Indeed, one of the facts which distinguished Mr Johnson’s case from the Uber driver's was that he had the licence with TfL and was subject to their regulatory regime, including sanctions if he failed to comply with it. Much of the control to which he was subject to was, therefore, dictated by TfL rather than Transopco.
The fact that he could be suspended from the app when there were excessive cancellations did not, in the tribunal’s view, amount to a significant measure of the control by Transopco, compared with the degree of control he had. In any event, cancellations were detrimental to the customer experience and the company was entitled to discourage them in order to protect its brand.
Taking everything into consideration, the level of independence enjoyed by Mr Johnson was consistent with an independent contractor in business on his own account, who contracted with Transopco as another business.
Mr Johnson appealed against the finding that he was not a worker, arguing among other things that the tribunal had placed an “impermissible focus” on what he was doing when he was not working for Transopco.
Dismissing the appeal, the EAT held that the tribunal was entitled to take into account the disparity in time and income that Mr Johnson derived from the app, and the rate at which he declined or cancelled jobs when considering whether his work for Transopco formed a part of his own business. Given those findings, it was entitled to conclude that this was not a dependent work relationship.
The tribunal had also properly found that the fact the company shared some of the risks - for example by providing top up fares when the actual fare was less - reflected the risks associated with providing the use of its platform. Similarly, the tribunal had properly assessed the significance of sanctions for excessive cancellations. It was therefore entitled to conclude that Transopco was not acting as an “agent” for Mr Johnson.
Finding that the tribunal’s decision as to the tests of dependency and control were “thoughtfully reasoned”, the EAT agreed with the tribunal that Mr Johnson was not a worker of Transopco, but rather that the company was a client or customer of his taxi-driving business.
There were a number of facts which distinguished Mr Johnson’s case from that of the drivers in Uber, a reminder that worker status cases are dependent on their own facts. As the EAT put it, the facts, as found by the tribunal in this case, “did not point to the only possible conclusion … that the claimant was a worker”. The focus of the tribunal on what Mr Johnson did when he was not working for Transopco is not necessarily relevant in every case. The feature of the working relationship on its own may be determinative as to an individual’s employment status.