FC Employment Judgment: Employment status

United Taxis Ltd v Comolly [2023] EAT 93

The Employment Appeal Tribunal considered whether it was possible for a claimant to simultaneously be an employee or worker of two employers in respect of the same work. The claimant was a registered driver with United Taxis Ltd (United Taxis), a limited company and co-operative which was licensed to operate private hire vehicles. The vehicles were provided by drivers who were shareholders in United Taxis and the claimant, who was not a shareholder, was engaged by various of these shareholders to work as a taxi driver. In a claim brought against United Taxis and one of the shareholders (Shareholder), the employment tribunal had found that the claimant was both a worker of United Taxis and an employee of the Shareholder for the purposes of s 230 Employment Rights Act 1996 and s 83 Equality Act 2010.

On appeal to the EAT, HHJ Auerbach held that the claimant was not a worker of United Taxis. In particular, he considered that the tribunal had erred in failing to grapple with the question of the possibility of dual employment, noting that previous decisions of both the EAT and the Court of Appeal showed that the concept of being an employee of two different employers in respect of the same work was "problematic" (Brook Street Bureau (UK) Ltd v Dacas [2004] EWCA Civ 217Cable & Wireless plc v Muscat [2006] EWCA Civ 220Cairns v Visteon UK Ltd [2007] ICR 616). The judge considered that the same difficulties would equally arise from dual worker contracts with different employers or from dual employment with one employer as a worker and the other as an employee. Although in Cairns the EAT had observed that these problems may not be insuperable, HHJ Auerbach did not, for his part, see how they could be overcome. The EAT had also not been referred to any authority holding that dual employment was legally possible. Therefore, there was no basis for finding that the claimant was, in respect of the same work at the same time, a worker (whether or not also an employee) of both United Taxis and the Shareholder. Furthermore, the tribunal had wrongly concluded that it was necessary to imply a contract of employment between the claimant and United Taxis to give the arrangements business efficacy.

HHJ Auerbach also held that the tribunal had erred in finding that the claimant was an employee of the Shareholder. The Shareholder did not exercise a sufficient degree of control over the claimant so as to point to an employee relationship. On this basis, the EAT substituted the findings that the claimant was neither a worker nor an employee of United Taxis and that he was a worker, rather than an employee, of the Shareholder.

For more information about employment status generally, see Employment status.