361: Self-employed or worker? What to consider when establishing gig-economy employment status

Despite many high-profile gig economy cases which have recently ruled in favour of worker status, there are also fact specific app models which may link to self-employment.

In Johnson v Transopco UK Ltd, the EAT has confirmed an Employment Tribunal decision that a London black cab driver registered with the Mytaxi app was in business on his own account, and not a worker of the app operator.

Mr Johnson worked mainly as a self-employed black cab driver in London. He was also registered with Mytaxi, an app operated by Transopco UK Ltd. In one year, he completed 282 trips via the Mytaxi app with a total value of £4,560 after commission. In the same period, he earned £30,472 as a self-employed black cab driver. Mr Johnson brought Employment Tribunal claims against Transopco for national minimum wage, holiday pay, unlawful deductions from wages and detrimental treatment for whistle-blowing. A preliminary hearing was held to decide whether he was a worker, and therefore able to proceed with these claims, or an independent contractor.

The Employment Tribunal concluded that Mr Johnson and Transopco contracted with each other as two independent businesses, and that Transopco was a customer of Mr Johnson’s taxi business. He was not in a dependent work relationship with Transopco since he could provide his services as infrequently or as often as he wished and was not subject to much control by Transopco as regards the way in which he undertook those services. For example, even when he was showing as free on the Mytaxi app, Mr Johnson was under no obligation to accept any jobs and could still choose to pick up passengers who hailed him from the street. Within certain parameters, he could also cancel a job he had already accepted on the app without suffering any significant sanction. In fact, Mr Johnson chose not to accept 75% of the trips offered to him through the app and cancelled 35.4% of the jobs he accepted. On average, he carried out 1.5 trips per day via the Mytaxi app, which represented less than 15% of his overall taxi-driving income.

The EAT has now upheld this decision, agreeing with the Tribunal’s reasoning. It rejected Mr Johnson’s argument that the Tribunal’s analysis amounted to imposing a minimum hours’ threshold on worker status. The Tribunal was entitled to look at the proportion of his time and income earned via the Mytaxi app, and his rates of declines and cancellations, since this was relevant to whether the work for Transopco was part of his own business. The EAT also rejected Mr Johnson’s argument that the services he provided to Transopco were a distinct activity, separate to his black cab driving business. The Tribunal had been entitled to take the view that his business was picking up passengers and driving them where they wanted to go, however those passengers had been obtained. In addition, although Transopco offered some incentives and risk-sharing, this did not inevitably point to worker status.

This case will be particularly interesting for employers with staff working through multiple apps since it suggests that Tribunals may analyse the proportion of a claimant’s total business activities carried out for each app when determining employment status. This case can be distinguished from the Uber decision as Uber exercised significantly more control over its drivers than Transopco, for example, as regards routes, fares, and choice of vehicle. Uber also excluded its drivers from receiving key information about passengers whereas Transopco drivers were given passenger names and contact details and could contact them after a trip. This illustrates that employment status cases will always turn on their own facts and circumstances.