“The claimant contended that he signed up to the App as it was the only way to maintain a sustainable income. However, that does not chime with his level of trips overall and his high percentage of cancellations.”
“Other clauses of note are: i. Clause 1.1 – this describes the service provided by the respondent to the driver as procuring potential passengers looking for a taxi via the mytaxi passenger app. ii. Clause 2.1 states that the user shall have no claim to the continuous and uninterrupted operability of the Driver App. In other words, there is no obligation upon the respondent to provide the driver with work through the App. iii. Clause 2.2 allows the respondent to discontinue the services offered via the app temporarily in whole or part without notice. iv. Clause 3.4 provides that drivers are obliged to accept open transport orders assigned to them. It is common ground that transport orders are assigned if they have been accepted by the driver. v. Clause 7 allows the respondent to block a driver’s use of the App if, inter alia, he does not carry out the assigned transport order without any particular reason and without furnishing proof thereof. This needs to be read in conjunction with the driver’s right to cancel orders. [239 & 240, 243] vi. Clause 9 provides that driver agrees to being rated by the passenger and for the respondent to publish the ratings (non anonymised) on its website.”
“I do not read it in that way. It is not unusual for businesses to use exaggerated language and, dare I say, hyperbole in their advertising. I see this as no more than the respondent seeking to draw attention to and sell its product.”
“To me that is a distinction without a difference.”
“22. The principal submission of Mr Humphreys in seeking to uphold the decision of the EAT was that in determining whether a claimant is an employee in the extended sense the essential question is to what extent he or she is acting "under direction", or is in a "subordinate" position, while at work. As he put it in his skeleton argument: "This will require an enquiry, founded on the contract, into the scope of that direction and the extent of any limitation on the putative employee's independence in that context. The absence of mutuality of obligation between engagement can add nothing to that enquiry … . " 23. I do not accept that submission. I accept of course that the ultimate question must be the nature of the relationship during the period that the work is being done. But it does not follow that the absence of mutuality of obligation outside that period may not influence, or shed light on, the character of the relationship within it. It seems to me a matter of common sense and common experience that the fact that a person supplying services is only doing so on an assignment-by-assignment basis may tend to indicate a degree of independence, or lack of subordination, in the relationship while at work which is incompatible with employee status even in the extended sense. Of course it will not always do so, nor did the ET so suggest. Its relevance will depend on the particular facts of the case; but to exclude consideration of it in limine runs counter to the repeated message of the authorities that it is necessary to consider all the circumstances. 24.That would be my view even without any reference to Quashie. But I do not in fact think that what Elias LJ said in the passage which I have italicised can properly be disregarded on the basis that the issue in that case was whether the claimant was employed under a contract of service. The underlying point is the same. The factors relevant in assessing whether a claimant is employed under a contract of service are not essentially different from those relevant in assessing whether he or she is an employee in the extended sense, though (if I may borrow the language of my own judgment in Byrne Bros (Formwork) Ltd v Baird[2002] ICR 667 : see para. 17 (5), at p. 678H), in considering the latter question the boundary is pushed further in the putative employee's favour – or, to put it another way, the passmark is lower. I would add for completeness that I do not think that Judge Clark's point that continuity of employment is not an issue in Equality Act cases (see para. 19 above) affects the analysis. The question is whether the claimant is an employee at all; and it was that which was the issue in Quashie.”
“(4) It seems to us that the best guidance is to be found by considering the policy behind the inclusion of limb (b). That can only have been to extend the benefits of protection to workers who are in the same need of that type of protection as employees stricto sensu - workers, that is, who are viewed as liable, whatever their formal employment status, to be required to work excessive hours (or, in the cases ofPart II of the Employment Rights Act 1996 or theNational Minimum Wage Act 1998 , to suffer unlawful deductions from their earnings or to be paid too little). The reason why employees are thought to need such protection is that they are in a subordinate and dependent position vis-à-vis their employers: the purpose of the Regulations is to extend protection to workers who are, substantively and economically, in the same position. Thus the essence of the intended distinction must be between, on the one hand, workers whose degree of dependence is essentially the same as that of employees and, on the other, contractors who have a sufficiently arm's-length and independent position to be treated as being able to look after themselves in the relevant respects. (5) Drawing that distinction in any particular case will involve all or most of the same considerations as arise in drawing the distinction between a contract of service and a contract for services – but with the boundary pushed further in the putative worker's favour. It may, for example, be relevant to assess the degree of control exercised by the putative employer, the exclusivity of the engagement and its typical duration, the method of payment, what equipment the putative worker supplies, the level of risk undertaken etc. The basic effect of limb (b) is, so to speak, to lower the pass-mark, so that cases which failed to reach the mark necessary to qualify for protection as employees might nevertheless do so as workers. (6) What we are concerned with is the rights and obligations of the parties under the contract - not, as such, with what happened in practice. But what happened in practice may shed light on the contractual position: see Carmichael (above), esp. per Lord Hoffmann at pp 1234-5.”
“53. It is clear that the statute recognises that there will be workers who are not employees, but who do undertake to do work personally for another in circumstances in which that "other" is neither a client nor customer of theirs – and thus that the definition of who is a "client" or "customer" cannot depend upon the fact that the contract is being made with someone who provides personal services but not as an employee. The distinction is not that between employee and independent contractor. The paradigm case falling within the proviso to 2(b) is that of a person working within one of the established professions: solicitor and client, barrister and client, accountant, architect etc. The paradigm case of a customer and someone working in a business undertaking of his own will perhaps be that of the customer of a shop and the shop owner, or of the customer of a tradesman such as a domestic plumber, cabinet maker or portrait painter who commercially markets services as such. Thus viewed, it seems plain that a focus upon whether the purported worker actively markets his services as an independent person to the world in general (a person who will thus have a client or customer) on the one hand, or whether he is recruited by the principal to work for that principal as an integral part of the principal's operations, will in most cases demonstrate on which side of the line a given person falls. It is not necessary for this decision to examine more closely the individual cases which may fall much closer to the dividing line, and the principles upon which those cases should be determined, because in the present case the Tribunal determined that Cotswold was not in the position of a client or customer of any profession or business undertaking carried on by the Claimant reason of "the nature of the Claimant's relationship with the Respondent" (paragraph 7.3). They did not elaborate further. However, it seems to us that they were entitled to draw that conclusion, in particular because no finding of fact suggests that the Claimant operated as an independent tradesman, and much of it is suggestive if not determinative of the fact that Cotswold recruited him to work for it.”
“I would agree that this will often assist in providing the answer, but the difficult cases are where, as in this case, the putative worker does not in fact market his services at all, nor act for any other customer even although Mrs James is not barred by her contract from so doing. In some cases the business is effectively created by the contract.”
“The striking thing about the judgments in Cotswold and Redcats is that neither propounds a test of universal application. Langstaff J's "integration" test was considered by him to be demonstrative "in most cases" and Elias J said that the "dominant purpose" test "may help" tribunals "in some cases" (paragraph 68). In my judgment, both were wise to eschew a more prescriptive approach which would gloss the words of the statute.”
“I agree with Maurice Kay LJ that there is ‘not a single key to unlock the words of the statute in every case’. There can be no substitute for applying the words of the statute to the facts of the individual case. There will be cases where that is not easy to do. But in my view they are not solved by adding some mystery ingredient of ‘subordination’ to the concept of employee and worker. The experienced employment judges who have considered this problem have all recognised that there is no magic test other than the words of the statute themselves. As Elias J recognised in Redcats, a small business may be genuinely an independent business but be completely dependent upon and subordinate to the demands of a key customer (the position of those small factories making goods exclusively for the ‘St Michael’ brand in the past comes to mind). Equally, as Maurice Kay LJ recognised in Westwood, one may be a professional person with a high degree of autonomy as to how the work is performed and more than one string to one's bow, and still be so closely integrated into the other party's operation as to fall within the definition. As the case of the controlling shareholder in a company who is also employed as chief executive shows, one can effectively be one's own boss and still be a ‘worker’. While subordination may sometimes be an aid to distinguishing workers from other self-employed people, it is not a freestanding and universal characteristic of being a worker.”
“The correlative of the subordination and/or dependency of employees and workers in a similar position to employees is control exercised by the employer over their working conditions and remuneration.”
“Second, although the argument before the ET and before us was couched in terms of whether Mr Smith was subject to a legal obligation to work (or be available) for a minimum number of hours, it should not be assumed that if there had been no such obligation the evidence about what hours he worked in practice would have been irrelevant. It is necessary to distinguish two separate circumstances in which the issue of whether a putative employee/worker is engaged on a casual basis might arise. The first is where the substantive claim directly depends on their enjoying employee/worker status in respect of their periods of work (e.g. because the claim concerns their pay or some discriminatory treatment in the workplace). In such a case the question whether the engagement is casual is indeed relevant, but only on the basis that it may shed light on the nature of the relationship while the work in question is being done (see Quashie v Stringfellow Restaurants Ltd[2002] EWCA Civ 1735 ,[2013] IRLR 99 , at paras. 10-13, and Windle at paras. 22-25). But it is not only legal obligations that may shed light of that kind. If the position were that in practice the putative employee/worker was regularly offered and regularly accepted work from the same employer, so that he or she worked pretty well continuously, that might weigh in favour of a conclusion that while working he or she had (at least) worker status, even if the contract clearly (and genuinely) provided that there was no legal obligation either way in between the periods of work. The second situation is where the claim directly depends on the claimant's status during periods of non-work, either because he or she has to establish continuity of employment or because the claim itself relates to their treatment during that period: in such a case mutuality of legal obligations is essential.”
“Is it necessary, or even relevant, to ask whether Mr Smith’s contract with Pimlico cast obligations on him during the periods between his work on its assignments?” and had observed cautiously, at [41], that Windle “must await appraisal on another occasion.”
“… subject only to the qualification that, where an individual only works intermittently or on a casual basis for another person, that may, depending on the facts, tend to indicate a degree of independence, or lack of subordination, in the relationship while at work which is incompatible with worker status: see Windle … para 23.”
“Mr Humphreys also submitted that it was wrong in principle that a person who would otherwise satisfy the criteria to be treated as an employee during a particular engagement should fall out of protection only because there was no "umbrella contract"; and, by the same token, that where there were two people who were in substantially the same position at work but one of them was working on a casual basis and one was not it was wrong in principle that they should not enjoy the same protection. But that is an Aunt Sally. The absence of an umbrella contract is relevant only if and to the extent that it contributes to the conclusion that the claimant is not in fact in a "subordinate" relationship characteristic of an employee – in which case he or she will not be in the same position as their comparator. Whether that is so in any particular case will depend on the circumstances of that case.”
“Also, I don’t believe it will assist my determination of status in this case.”
“The next question is: what was that business?”
“The services we are concerned with here can loosely be described as transportation services – picking up passengers and driving them to their desired destinations.”
“9. The way the App works is that rather than hailing a Black Cab in the street by sticking their hand out, people can book one via the the App downloaded onto their mobile phones. Taxihailing apps have become widely used in the UK, and indeed worldwide, over recent years. The most well-known of these is of course the Uber app, used to book private hire vehicles such as minicabs. The company operating the Uber app in the UK (“Uber”) has had its own issues over the status of drivers using its app, culminating in litigation at ET, EAT and the Court of Appeal - Uber BV v Aslam[2019] ICR 845 (“Uber”). 10. Both parties have quoted Uber extensively, albeit from different standpoints. The claimant contends the present case is on all fours with Uber and should be decided in the same way. The respondent on the other hand contends that there are significant distinguishing features which justify a departure from Uber. 11. As is often said and is well worth repeating; issues of worker status are a mixture of fact and law. Many of the Uber conclusions turned on the specific findings of fact in that case and should therefore not be seen as a panacea for all driver-status questions relating to app based taxi hailing operations. On that point, it was recognised in Uber that Uber could have devised a business model that did not involve them employing drivers [ para 97 ET Uber].”
“[t]aking the above reasons in the round”