Thread by @JasonBraier

1/ Johnson v Transopco: EAT upholds finding that a black cab driver using the MyTaxi App wasn't a limb (b) worker.
bailii.org/uk/cases/UKEAT…
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2/ J, who has a Hackney Carriage licence, used the App for about a year before being removed from it. He then brought claims for minimum wage, unlawful deductions, whistleblowing detriment & holiday pay, for all of which he needed to prove worker status.

3/ A driver joins the App by entering personal details, including bank & Hackney Carriage licence. There's no interview & no obligation to attend an induction. Drivers can set their settings to 'Go Free' when they want MyTaxi jobs. They've 4 secs to accept them.

4/ Fares are set through the driver's taximeter, subject to a £10 minimum during core hours, though J decided not to charge that & wasn't forced by MyTaxi to do so. Payments are taken through the App, the driver's card machine or in cash. MyTaxi makes bi-weekly payments minus 10%

5/ Drivers & passengers are free to 'scrub' journeys. In certain circumstances, MyTaxi pays a fare to the driver when the passenger scrubs. A driver who scrubs regularly may be suspended from the App. J was suspended for a while when scrubbing lots in a short period.

6/ J earned less than 15% of his annual fares through the App & did about 1.5 fares through it a day. When accepting a job, drivers were given the passenger's name, photo & tel no, & could make direct contact before & after the job.

7/ Contractual arrangements allowed for MyTaxi to block a driver's use of the App for not carrying out accepted trips without reason, & also provided that MyTaxi took all credit risk for fares.
There was no right of substitution.

8/ The ET found that on accepting a job J's obligation was to MyTaxi & not the passenger & that the passenger contracted for the service with MyTaxi & those services were then delivered via a separate contract between driver & MyTaxi.

9/ It distinguished Uber on a number of bases including that J held his own TfL licence rather than MyTaxi being subject to the regulatory regime & also on account of the driver's freedom to contact the passenger, fares being set by the taximeter & freedom how to do the job.

10/ The ET distinguished Autoclenz by noting this was not a particularly dependent relationship, accounting for a small amount of J's earnings. Hence there wasn't the same dependency for MyTaxi to take contractual advantage of when providing non-negotiable terms of contract.

11/ The ET also relied on Windle, finding the complete absence of mutual obligation when not Go Free on the App relevant to the question of control as an element of worker status. The ET noted also that even when accepting jobs drivers could reverse that.

12/ Although that was a sanction, it wasn't a significant measure of control when weighed in the balance.

Ultimately, the ET found all indicators pointed against worker status & towards MyTaxi being a customer of J's business.

13/ J asserted the ET erred in that conclusion, wrongly focussing on what J did when not working for MyTaxi, erring on approach to control & integration & financial risk, wrongly treated Uber as a minimum threshold & failed to consider relevant regulatory issues vis-a-vis Uber.

14/ After a useful trip through the authorities, the EAT started with the Windle point. J raised concern that the ET's approach was to make mutual obligation into a numbers game whereas the authorities minimised the relevance of lack of mutual obligation when not working.

15/ J wondered how the ET's approach to extent of reliance on MyTaxi for work as against other routes was consistent with the multi-app cases & whether it risked those drivers being robbed of workplace protection.
MyTaxi noted that in Uber casuality had been a relevant feature.

16/ The EAT was satisfied Windle remained authoritative & also the approach wasn't different under EU law. The test was one involving consideration of dependency/subordination & the extent of use of the App vis-a-vis other work was of relevance. It wasn't a numbers game per se.

17/ This doesn't mean that what a driver is doing when not working for the App will always make the difference, merely that it's not necessarily wrong to regard it as relevant. The fact multi-apping in other cases wasn't a bar to worker status didn't mean J here must be a worker.

18/ On the TfL regulatory regime, part of J's case was that the regime only applied to cab drivers when 'plying for hire' & that he wasn't doing that when taking passengers through the App & hence the regime didn't then apply. The High Ct found after the EAT hearing that to be so

19/ J submitted that meant when working for MyTaxi he was carrying out work of a substantively different nature to his ordinary taxi work, relying on Westwood. MyTaxi noted it hadn't required J to do anything inconsistent with treating his work for them as if plying for hire.

20/ The EAT took from Westwood that the q of whether the work done for a respondent is in the course of a profession or business is a matter of fact & impression on all relevant facts, & thus only appealable on perversity grounds. The ET was entitled to view MyTaxi as a client.

21/ The EAT also considered as crucial to this aspect of the analysis the different regulatory regimes for a Hackney Carriage driver (who can ply for hire & take private bookings) as against a private-hire vehicle as per Uber, who can't ply for hire.

22/ The EAT considered it acceptable for the ET to consider irrelevant to the q of the essential nature of J's business whether or not he was plying for hire when accepting MyTaxi jobs. It wasn't perverse to find that jobs through the App were materially the same as otherwise.

23/ J argued that the ET erred in finding the financial relationship consistent with client/customer relationship, noting there was a loyalty scheme, & that MyTaxi paid scrub fees for some passenger cancellations & airport parking expenses & risks borne by MyTaxi.

24/ The EAT agreed with MyTaxi that the ET considered these features & found they didn't tip the balance in favour of worker status, & that the fact of taking some risk or enhancing financial attractiveness doesn't inevitably point to worker status.

25/ On control, J said subordination wasn't essential to worker status but anyway the ET failed to pay adequate attention to various elements of control by MyTaxi, including scrubbing, passenger ratings & non-negotiable contractual terms.

...[Thread to be continued]

26/MyTaxi noted that whilst Bates said it wasn't a necessary component, in Uber the SC regarded subordination as that which required worker status to be protected & asserted the ET was right to consider it & that J's appeal was re weight & hence needed to be on perversity grounds

27/ The EAT agreed with MyTaxi, noting the central role played in the SC decision in Uber by dependency as an element of control. The ET decision on this point wasn't perverse & the EAT couldn't interfere with it.

28/ The EAT reached a similar view on integration, namely that the appeal was against the weight of the ET's findings & that needed to be a perversity appeal.

Finally, the EAT rejected the suggestion that the ET took a mechanistic or tick box approach to applying Uber.

29/ J's 2nd ground of appeal was that the decision of the ET wasn't Meek compliant (i.e. was insufficiently reasoned). This was given short shrift, with the EAT describing it as a "model of focussed and articulate reasoning".

30/ An interesting addition to the lexicon of worker status case law, especially the driver app cases. Not convinced it will go further but well argued either way.
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