United Taxis Limited v R Comolly & Anor

I will refer to the parties as Mr Comolly, United Taxis and Mr Tidman. Mr Comolly presented a claim to which Mr Tidman and United Taxis were the first and second respondents. The complaints raised included unfair dismissal, wrongful dismissal, unlawful deduction from wages, failure to pay holiday pay, and a complaint of age discrimination.

In a reserved decision arising from a preliminary hearing at Bristol (held by CVP) the employment tribunal (Employment Judge D Harris) gave judgment in the following terms:

The preliminary hearing took place over two separate days. Mr Comolly and Mr Tidman appeared in person. United Taxis was represented by Mr Wyeth of counsel. The second hearing day was arranged to enable the parties to make further submissions following the decision of the Supreme Court in Uber BV v Aslam [2021] UKSC 5; [2021] ICR 657.

I heard together the appeals of both United Taxis and Mr Tidman from that decision. Messrs Comolly and Tidman were litigants in person in the EAT. At the hearing of the appeal Mr Comolly appeared in person. Mr Tidman was represented by Ms Quigley of counsel through the auspices of Advocate. Mr Wyeth of counsel, as before the tribunal, appeared for United Taxis.

The relevant facts found by the tribunal were, in summary, as follows.

United Taxis is a limited company which is licensed by Bournemouth Council to operate private hire vehicles. The tribunal set out extracts from its Articles of Association, including a requirement for shareholders to pay subscriptions. The Articles provide for byelaws, from which the tribunal also cited extracts. These state that drivers registered with United Taxis are expected to abide by the byelaws. They describe the company as a co-operative owned by member-shareholders. The extensive extracts cited by the tribunal covered such matters as display of United Taxis signage, dress code, restrictions on doing private work for United Taxis customers, or using other Apps, while registered with United Taxis, handling of jobs, use of a Chip & PIN machine and so forth.

In the following passage the tribunal considered the roles of Mr Tidman and Mr Comolly.

The tribunal described the computerised despatch system operated by United Taxis, called iCabbi, and the iCabbi App to which drivers would log on. Through the App drivers would be sent blue jobs, where they appeared to be the first available taxi, which they could refuse, subject to a time penalty; or green jobs, for which they could compete. Metered fares were paid by the passenger to the driver in cash or using the Chip & PIN machine in the taxi, causing payment to go to United Taxis. For account work the agreed fare was paid by the passenger directly to United Taxis.

At [19] the tribunal said this.

The tribunal went on to discuss provisions contained in the United Taxis Driver’s Training Manual, including in relation to time penalties for not accepting a blue job, or rejecting it following acceptance (though it accepted from Mr Comolly that the practice as to the length of time penalties differed from what the Manual provided), and a penalty points system in respect of complaints, that could lead to a driver being suspended or deregistered. The tribunal then continued as follows.

The tribunal began its self-direction as to the law as follows.

The tribunal then stated that, as to how these statutory provisions should be interpreted, it reminded itself of the decision in Uber, and set out extracts from the discussion in that decision.

The tribunal summarised Mr Comolly’s case as being that he was an employee or, if not, a worker, of Mr Tidman and/or United Taxis, Mr Tidman’s case as being that Mr Comolly was self-employed and not his employee or worker, and United Taxis’ case as being that Mr Comolly was not its employee or worker and that no contract had existed between him and it at all.

Under the heading “Decision” the tribunal wrote.

In overview United Taxis’ appeal raised three grounds of challenge.

First, the tribunal had erred by finding that Mr Comolly was simultaneously an employee of Mr Tidman and a worker of United Taxis in respect of the same work. That outcome, entailing what might be called dual employment, was not legally possible. For that reason alone, submitted Mr Wyeth, at least one of the two appeals must succeed.

Secondly, the tribunal had in any event erred, by implying the existence of a contract between Mr Comolly and United Taxis when it was not necessary to do so in order to give business reality to the arrangements, nor to achieve the employment protection purposes of the legislation. Mr Wyeth relied on the discussion of this point in particular by the EAT, then approved by the Court of Appeal, in James v Greenwich LBC [2007] ICR 577; [2008] EWCA Civ 35; [2008] ICR 545.

Thirdly, and in any event, the tribunal erred by finding that any contract between Mr Comolly and United Taxis created a worker relationship, by reaching a perverse decision which failed to take proper account of a number of factual features pointing away from it. Mr Wyeth emphasised in particular the factual features that United Taxis did not retain any part of the fares paid by customers, hence had no financial interest in how much or little work drivers did, and had no interest in, or control over, the arrangements made between shareholders and drivers who worked with them. He also stressed that, while the claimant in fact only spent a small part of his time picking up work by plying for hire as a Hackney Carriage, that was his choice. He was free to do as much or as little Hackney Carriage work and as much or as little private United Taxis work as he wanted.

In overview Mr Tidman’s grounds of appeal raised the following main points of challenge.

First, he too relied on the dual employment point. Ms Quigley submitted that the tribunal’s error in this regard meant that the whole decision was fundamentally flawed.

Secondly, in any event, the tribunal erred by misanalysing the factual and legal nature of the contract between Mr Tidman and Mr Comolly. The contract was not one by which Mr Comolly provided services for which Mr Tidman paid him, but one by which Mr Comolly hired Mr Tidman’s taxi, for which he paid Mr Tidman a hire fee of 50% of the income he derived from using it.

Thirdly, even if it did not err by finding that Mr Comolly provided services to Mr Tidman, the tribunal had erred in finding that the contract between them was one of employment. In particular it had erred in its approach to control, by failing to recognise that Mr Tidman only controlled the time period during which his taxi was available to Mr Comolly, not what Mr Comolly did during that time, and by relying on features which actually related to Mr Comolly’s relationship with United Taxis. It also failed to identify what other factors it found to be consistent with employment.

Both Mr Wyeth and Ms Quigley also contended that the tribunal should have found that Mr Comolly was in business on his own account.

Mr Comolly, in summary, contended that the tribunal had reached a permissible analysis, and one which reflected the factual realities of the working relationships. Points that he emphasised included the length of his overall relationship with United Taxis, including prior to his involvement with Mr Tidman, the economic reality that he could not earn his living through Hackney Carriage work, and the degree of control in fact exercised over him. On the dual employment point, he contended that the tribunal had reached a conclusion which was not contrary to the authorities.

The tribunal’s self-direction as to the law was not, as such, criticised by any party before me. It was correct, as far as it went, and provides a starting point in relation to the law. I will say more about some particular aspects of the law in the discussion to follow.

As to the substantive decision, I start with the tribunal’s finding at [19]. There it found that, in respect of each ride booked with United Taxis and carried out by Mr Comolly, the passenger’s contract was with United Taxis. It did not find United Taxis to be acting as the agent of anyone else viz a viz the passenger. Mr Wyeth (though not Ms Quigley) submitted that the tribunal erred in [19], in particular when it said that United Taxis “relied upon shareholders and drivers to perform driving services for it”. He said that this failed to take account of the fact that United Taxis is a driver-owned co-operative, which exists for the benefit of its shareholders, and passes on 100% of the income received from passengers. He said that it was the shareholders that relied on, or used, United Taxis.

I do not agree, however, that these factual features demonstrate that the tribunal erred in this part of its analysis. As Mr Comolly pointed out, United Taxis is a limited company. It plainly, both in law and practical reality, has a separate existence from its shareholders and the other drivers. Nor did the tribunal err for any other reason in finding that the contract made by each passenger was (and, plainly it found, was only) with United Taxis.

Next, it follows from this starting point of the analysis that, pursuant to the contract between them, as a matter of fact and law, United Taxis provided to each passenger the service of driving them to where they wanted to go, and the passenger paid United Taxis the fare for doing so. Both of these were so, notwithstanding that United Taxis engaged someone else to deliver the service on its behalf; and notwithstanding the different mechanisms by which payment was made.

Plainly the actual conveying of United Taxis’ passengers was done by Mr Comolly. That was a service that he was providing to someone else, in some capacity, and for which that someone else was paying him. There were only two possibilities. Either he was providing the service to Mr Tidman and Mr Tidman was paying him for it; or Mr Comolly was providing the service to United Taxis and United Taxis was paying him for it. If it was the former, then the other link completing the chain, was that Mr Tidman was providing the service to United Taxis – which task he had sub-contracted to Mr Comolly to fulfil on his behalf – and United Taxis was paying Mr Tidman for doing so.

It appears to me to be clear that the tribunal found that the first of those two analyses applied in this case. At [12] it found that Mr Tidman could “drive a taxi himself” and/or “engage other drivers to drive”. If a shareholder did engage other drivers, United Taxis had “no involvement as to the basis on which the drivers were engaged by the shareholder”. At [16] it referred to not knowing the terms on which the claimant “worked as a taxi driver” for Mr Parkinson. At [17] it found that he “ceased working for Mr Parkinson and began work as a taxi driver with the First Respondent.” Crucially, the tribunal found (also at [17]) that the only way that the claimant could work as a registered driver for United Taxis was “through” a shareholder or by paying a monthly circuit fee. Though he was initially interested in becoming a shareholder, he did not do so [14]. Plainly he did not go the circuit-fee route either. That this was the tribunal’s analysis is further clear from its discussion of the respective roles of the four parties, at [25], in particular, at [25.2.2] holding that the role of shareholders included “engaging drivers” who were referred to them by United Taxis.

I do not agree with Ms Quigley that the tribunal erred by not finding that the contractual relationship between Mr Tidman and Mr Comolly was, and was solely, one in which Mr Comolly hired Mr Tidman’s taxi in return for which Mr Comolly paid him a hire fee. It was not bound so to find. Its actual findings point to its analysis (consistently with the other findings to which I have referred) being that Mr Tidman was paying Mr Comolly for doing the driving work. At [24.16] it described the fares as being “split” between them and the claimant having described “his share of the fares as a commission payment”. Ms Quigley made the point, correctly as such, that the route which the money takes is not necessarily a reliable or determinative guide to the correct analysis of the contractual obligations. But these findings again signify that the tribunal considered – consistently with its findings elsewhere – that Mr Comolly was engaged as a driver for Mr Tidman, and that the substance of the transaction was that Mr Tidman paid Mr Comolly for doing driving work.

Nor do I think that the fact that Mr Tidman provided the taxi means that the tribunal was bound to conclude that the entire nature of the contract between them was simply that Mr Comolly was paying to hire the taxi from Mr Tidman. Other potentially possible analyses were that, in order to enable Mr Comolly to provide the sub-contracted driving services to him, Mr Tidman provided Mr Comolly with the use of the taxi without making any separate charge-back for its use, distinct from the payment which he was otherwise paying to Mr Comolly for those services; or that Mr Comolly was providing sub-contracted driving services to Mr Tidman in exchange for payment for that service, but was also paying Mr Tidman something for the use of the taxi.

It appears to me that, of these possibilities, the tribunal concluded that there was, simply, an agreement that Mr Tidman would provide the taxi and Mr Comolly would drive the passengers and receive 50% of the overall income. There is no finding that there was any separate payment or adjustment for taxi hire in [24.16] or anywhere else. There is no reason why the tribunal could not have concluded that this was the commercial bargain which was genuinely agreed. But in any event, I conclude that it did not err by not finding that this was purely and wholly a contract of vehicle hire.

Pausing there, it appears to me that the tribunal properly concluded, analysing the facts found, that there was a contract between Mr Tidman and Mr Comolly pursuant to which Mr Comolly provided the service of driving passengers of United Taxis, and Mr Tidman paid Mr Comolly for that service. I will return to the question of whether the tribunal erred by also finding that the contract under which Mr Comolly provided driving services to Mr Tidman was a contract of employment.

Before that I turn next to consider whether the tribunal erred in reaching the conclusion that Mr Comolly also had a contract with United Taxis pursuant to which he was a worker of United Taxis. I conclude that it did so err. That is for two overarching reasons.

First, the chain of reasoning in the lengthy paragraph [41] requires a little unpacking. The starting point is that the reason why the tribunal rejected United Taxis’ contention that there was no contractual relationship between it and Mr Comolly, was because it held that it was plain that there was an implied contract between them that was regulated by United Taxis’ Driver’s Training Manual and bye-laws, pursuant to which, in return for paying to become a registered driver and thereafter agreeing to carry its passengers for the opportunity of reward from Mr Tidman, Mr Comolly agreed to comply with the Manual and byelaws. Then, in the second half of the paragraph the tribunal set out various conclusions about the nature and degree of control which United Taxis exercised, leading to the conclusion at [42] that the service was “very tightly defined and controlled” by United Taxis.

The first potential difficulty with this reasoning is that, if by this passage the tribunal meant that it was necessary to imply the existence of a contract between United Taxis and Mr Comolly as a matter of business necessity, in order to enable United Taxis to enforce and police its Manual and bye-laws, that takes no account of its findings that United Taxis had the de facto power to control his ability to use App to get work, whether by the imposition of temporary or partial exclusion by way of short time penalties, longer periods of suspension, or permanent deregistration. I note also that, elsewhere (at [24.19]) the tribunal also said that it was agreed “by necessary implication” between Mr Comolly and Mr Tidman that Mr Comolly would comply with United Taxis’ bye-laws (although later, at [40.3], it described this as an “expectation” on the part of Mr Tidman).

All of that said, I can see that the tribunal’s broader point was that, realistically, one way or another, given the fact of registration, the payment of the registration fee, and the detailed and prescriptive contents of the byelaws and Drivers Manual, which addressed themselves to all drivers, and not just shareholders, Mr Comolly was, by implication from his conduct in registering, making a legally binding commitment to United Taxis, that, in exchange for being given access, or continued or uninterrupted access to this sort of work, he would abide by these requirements in relation to it.

However, the second, and more fundamental, difficulty, is that the tribunal failed to consider whether that contract was a contract pursuant to which Mr Comolly undertook to provide a driving service to United Taxis. Even if he impliedly agreed to abide by United Taxis’ Manual and byelaws when carrying its passengers, as a condition of being permitted, or continuing to be permitted, to do so, that did not necessarily point to the conclusion that he was agreeing to provide that service direct to United Taxis. It would be equally compatible with the conclusion (which, as I have said, it appears to me that the tribunal in fact reached) that he was permitted to access the work through the route of being a sub-contractor retained by a shareholder; and that United Taxis was able to enforce that arrangement, because it would only permit a shareholder to give the work to a driver who had registered with it, and promised to abide by its rules and byelaws.

Mr Comolly relied upon the fact that he had already been driving United Taxis’ passengers before Mr Tidman became involved and his overall extremely long relationship with United Taxis. He referred to two cases involving agencies, but in which the tribunal was held by the EAT to have properly found that there was a contract of employment with the end user of the claimant’s services: Harlow District Council v O’Mahoney UKEAT/0144/07 and National Grid Electricity Transmission plc v Wood, UKEAT/0432/07. But each case turns on its own facts, and neither of these involved any gloss upon, or refinement of, the James v Greenwich approach.

In the present case, the tribunal found that there were only three ways to access the United Taxis’ work: by becoming a shareholder, paying a monthly circuit fee, or working for a shareholder. The tribunal found that, throughout, Mr Comolly took the last of these routes. After registering with United Taxis he was put in touch with a shareholder, Mr Parkinson, for whom he did driving work. In 2014 he stopped working for Mr Parkinson and began working for another shareholder, Mr Tidman. This was not a case where he was found to have initially had a contract with United Taxis under which he directly worked for it, and in relation to which Mr Tidman was later artificially interposed in a sham arrangement, or anything similar.

That is the first reason why the tribunal erred in concluding that Mr Comolly had a contract with United Taxis under which he provided driving services to it as a worker. It wrongly concluded that it was necessary to imply such a contract to give the arrangements business efficacy, overlooking the possibility that any contract between them was merely a collateral contract under which he undertook to abide by United Taxis’ rules and byelaws as a condition of being permitted to carry its passengers as a sub-contractor for a shareholder.

The second reason arises from the dual employment point. The jurisprudence can be traced back to the nineteenth century; but the point has been considered in the present century more than once by the Court of Appeal and EAT. In the following passage in Cairns v Visteon UK Limited [2007] ICR 616 the EAT reviewed the pertinent authorities up to that point, including Brook Street Bureau (UK) Limited v Dacas [2004] EWCA Civ 217; [2004] ICR 1437 and Cable & Wireless plc v Muscat [2006] EWCA Civ 220; [2006] ICR 975:

I highlight two particular points emerging from that discussion. The first is that the Court of Appeal and the EAT have both considered that to hold that a person was, simultaneously, the employee of two different employers in respect of the same work would be, for reasons explained, “problematic”. The second is that, where the individual has been found to be the employee of one party, it cannot be necessary to imply that they are also the employee of another party in order to secure that they are not deprived of employment protection rights to which they should be entitled.

These authorities, and the problems to which dual employment would be liable to give rise, have been discussed again more recently by the EAT in Patel v Specsavers Optical Group Limited [2019] UKEAT 0286/18 and McTear Contracts Limited v Bennett [2021] UKEAT 0023/19.

In my judgment many, if not all, of the same difficulties or conundrums, discussed in the authorities, to which dual employment under two contracts of employments with two different employers would arise, would equally arise from dual worker contracts with two different employers, having regard to the fact in particular that both entail a wage-work bargain. The same would be true, therefore, of dual employment with one employer as a worker and the other as an employee. While the EAT in Cairns observed that the problems may not be insuperable, I have not been referred to any authority which discusses how they could be overcome or holds that dual employment is legally possible. I cannot for my part see how they could be overcome.

Mr Comolly relied upon the passage in Viasystems v Thermal Transfer (cited in the foregoing passage from Cairns at [9]) in which Rix LJ contemplated that a person could have two jobs at the same time with separate employers provided they are compatible with one another, or be employed by joint employers. But in this passage Rix LJ contrasted these scenarios with the proposition that an employee cannot have contracts of employment with two separate employers at the same time and for the same period and purposes. Similarly, secondment, or lending of an employee or worker, from one party to another, is another permissible, but different, scenario.

In this case, however, the tribunal reached the conclusion that, when carrying out a job conveying a United Taxis customer, Mr Comolly was both an employee of Mr Tidman (which it appears to have found he also was continuously throughout their relationship) and a worker of United Taxis. It found that he was both things in respect of the same work at the same time. It erred in failing to grapple with the dual employment issue; nor, in the light of the authorities, can I see any basis on which it could properly have found that Mr Comolly was, in respect of the same work at the same time a worker (whether or not also an employee) of both United Taxis and Mr Tidman.

Before leaving this aspect, I observe that I do think that the issue of whether it was necessary to imply a worker relationship with United Taxis in order to ensure that Mr Comolly was not deprived of employment protection rights that Parliament intended him to have adds anything material in this case. If he ought to have been entitled to such rights, applying the guidance in Uber, then they would be secured by the conclusion that he was a worker (if not also an employee) of Mr Tidman.

For these reasons I conclude that the tribunal erred in concluding that Mr Comolly was a worker of United Taxis, and I conclude that this was not a legally tenable analysis of the facts found.

I turn then to the question of whether the tribunal erred in concluding that the contract under which it permissibly found that Mr Comolly provided the service to Mr Tidman of driving passengers of United Taxis, was a contract of employment. Ms Quigley submitted that the tribunal erred in particular in relation to its approach to the questions of control and mutuality of obligations. Further, she contended, it could not properly have found that Mr Comolly was even a worker of Mr Tidman when doing a United Taxis job. The facts were bound to lead to the conclusion that he was running his own business, of which Mr Tidman was a customer. He was, she submitted, like Mr Johnson in Johnson v Transopco UK Limited [2022] EAT 6; [2022] ICR 691.

My conclusions on this issue are these. The tribunal at [40.2] to [40.4] addressed the Ready Mixed Concrete questions, plainly drawing on its earlier factual findings, including those at [24] as to what it there called the circumstances in which the claimant worked for Mr Tidman. I do not think it erred in concluding at [40.2] and in the course of [40.3] that there was an obligation of personal service. It properly found that it was not open to Mr Comolly to substitute another driver. Its finding at [40.2] that there was “accordingly mutuality of obligation” does not, however, address the question of the periods during which such mutuality existed. It is not clear how it came to the conclusion that the answer was that there was uninterrupted mutuality of obligation in the relevant respect during the period from when Mr Comolly’s relationship with Mr Tidman first began to when it ended.

As to control, the tribunal relied specifically, at [40.3], on the fact that Mr Tidman controlled the times when Mr Comolly had the use of the taxi, which belonged to Mr Tidman, and hence was able to work, the “expectation” on the part of Mr Tidman that he would comply with United Taxis’ byelaws, and the conclusion that he had “no opportunity” to market his own services to the passengers and “no opportunity to develop his own personal taxi business”. These last two appear to me to have been a linked pair, and drew, I infer, on the United Taxis byelaws (which the tribunal had extracted at [10]) containing a prohibition on drivers undertaking private work for their customers and using or promoting other taxi or private-hire Apps, on pain of deregistration, and the finding at [24.10] that the byelaws prohibited Mr Comolly from working for another shareholder when working for Mr Tidman. That in turn appears to be a reference to the bye-law (set out in the extract at [10]) stipulating that drivers and shareholders “agree not to solicit or engage the services of each other’s drivers.”

Ms Quigley submitted that the tribunal erred because it failed to take into account that, while Mr Tidman controlled the time windows during which Mr Comolly was able to work, he did not control what Mr Tidman did during those time windows. In particular, he had no control over how much time Mr Comolly spent on United Taxis work and how much on Hackney Carriage work. Further, other features relied upon by the tribunal were dictated not by Mr Tidman, but by United Taxis. The tribunal also failed to take into account other things that United Taxis dictated, such as the rates charged to is passengers, and matters covered by its bye-laws such as dress code and signage.

In my judgment the tribunal erred in this regard. It failed to consider, or sufficiently to explain, how it arrived at the conclusion that the nature and degree of control exercised by Mr Tidman pointed not merely to a worker relationship, but to an employee relationship. The application of the distinction between a so-called limb-(a) worker who is an employee and a limb-(b) worker who is not, is a subtle and fact-sensitive task for the appreciation of the tribunal. As both types of worker must be under a sufficient obligation to do or perform work or services personally, which side of the boundary between the two the given case lies is liable to emerge from a consideration of the degree, nature and source of the control exercised over the putative employee, together with a consideration of whether the other provisions of the contract are consistent with it being one of employment.

In this case the tribunal failed to consider the distinction between aspects of how Mr Comolly worked and what he could or could not do – in particular the times at which Mr Tidman’s taxi was available – that were autonomously determined by Mr Tidman, and aspects that were dictated and determined by United Taxis, but also required by Mr Tidman. The latter were not irrelevant to Mr Comolly’s status viz-a-viz Mr Tidman. But the difference between the two needed to be taken into account in assessing their significance for the overall status issue. United Taxis’ prohibitions on Mr Comolly working for other shareholders or other Apps, or privately for United Taxis’ customers, were also potentially relevant to the proper categorisation of his status.

So, even if it could properly conclude that he was not in business on his own account, the tribunal needed also specifically to engage with the question of whether Mr Comolly was a mere worker or an employee, and the significance which the source, nature and extent of the control exercised or exerted by Mr Tidman had for that question. This was particularly important in this case given the role of United Taxis and indeed the tribunal’s later finding at [42] that the transportation service provided by the claimant was “very tightly defined and controlled” by it. Relatedly, I also agree with Ms Quigley that the tribunal erred by simply stating at [40.4] without elaboration that the other provisions of the contract were consistent with it being one of service. Bearing in mind that there was no written contract between them, I agree with her that it must have had in mind some, if not all, of the matters listed at [24]. But it failed to identify which of these it had in mind, and failed to address what it made of those which might be said to point away from that conclusion.

I conclude that the tribunal erred in respect of its finding that Mr Comolly was an employee of Mr Tidman. It did not sufficiently engage with the foregoing features, particularly in relation to the different factual aspects of the nature, extent and source of the control exerted by Mr Tidman upon Mr Comolly, or explain its reasoning in relation to them.

It follows from all my conclusions that I allow the appeals of both United Taxis and Mr Tidman. In relation to United Taxis the tribunal could not, applying the law to its factual findings, properly have concluded that Mr Comolly had a worker contract with it, and so there is no need to remit. Instead, I will substitute a finding that he was neither a worker nor an employee of United Taxis. In relation to Mr Tidman, Ms Quigley invited me, in the event that I allowed his appeal, to substitute my own decision that Mr Comolly was in business on his own account, which she said was the only proper conclusion from the facts found. Mr Comolly indicated that he would be content for me to substitute my own decision drawing on the facts found, if I felt able to do so, whatever it may be. It appears to me that all of the essential facts have been found by the tribunal, so that I am in a position to determine Mr Comolly’s status viz-a-viz Mr Tidman, drawing on those facts. It also appears to me that, realistically, there is only one permissible correct legal analysis of those facts.

Ms Quigley, as noted, contended that the only correct conclusion on the facts found was that Mr Comolly was carrying on his own business undertaking. She relied inter alia on the fact that, while he in fact only spent 5% of his time on Hackney Carriage work, he still had the freedom to decide how much of his working time he devoted to such work and how much to United Taxis’ work.

Which side a given case lies of the boundary between a worker relationship and one in which personal services are being provided by someone to a customer or client of their own profession or business undertaking is a nuanced question. The EAT’s discussion in Byrne Brothers (Formwork) Limited v Baird [2002] ICR 667 at [17] (to which the Supreme Court referred in Uber) remains invaluable, and I set out the core part of it.

See also the discussion of other, more recent, pertinent authorities, in Johnson v Transopco.

In the present case, I do not think that the tribunal’s findings in relation to Hackney Carriage work point to the conclusion that Mr Tidman purchased Mr Comolly’s driving services as a customer of a business undertaking carried on by him. At [24.13] the tribunal, while finding that there was no express agreement as to how Mr Comolly would divide his time, also found that the “reality” was that he spent the “bulk of his time” carrying United Taxis passengers and that it accepted that there was far more work to be had via the United Taxis App. It also found that the iCabbi “break button” was disabled and, once he began a shift, and logged on, his choice about whether to accept private hire rides was influenced by the United Taxis penalty system [41]. As I have observed, weight should also be attached to the fact that United Taxis required, as a condition of being permitted to do its work, that he not do certain other kinds of driving work.

In my judgment, the tribunal did not err by failing to find that Mr Comolly was carrying on his own business undertaking, as such. Drawing on its found facts the only tenable conclusion was that he was not. He did not have his own taxi. He was not free to obtain work from other taxi or driving Apps. Nor could he offer his services to United Taxis’ passengers privately. Although he was able to do Hackney Carriage work, that income was also shared with Mr Tidman. The tribunal accepted that, factually, the available Hackney Carriage work was very limited, as reflected in the low proportion of such work undertaken by Mr Comolly. He did not use the United Taxis App as just one among multiple Apps or sources of work for his own business.

It is also clear, in light of the tribunal’s findings, that Mr Comolly undertook to perform his driving services personally. It would not have been an option for him to retain a substitute driver.

As to control, the tribunal found that Mr Tidman controlled the periods during which Mr Comolly could work, but Mr Comolly controlled which jobs he took, including as between Hackney Carriage work and United Taxis’ jobs. But the tribunal also found that the limited availability of Hackney Carriage work meant that he was significantly dependent on the United Taxis’ work. Mr Tidman did not set the fares or make the United Taxis rules and bye-laws. However, he did expect Mr Comolly to abide by them. Weighing up these different factual aspects, it appears to me that the nature, extent, and source, of control exerted by Mr Tidman could not be properly viewed as consistent with employee status, some features pointing away from it; but it did point to worker status. Finally, in light of all the tribunal’s findings of fact, in particular in relation to the overall financial arrangement, and the expectation that Mr Comolly would work throughout the periods when the taxi was available to him, I conclude that there was mutuality of obligation during each of those periods.

I will therefore substitute a finding that Mr Comolly was a worker of Mr Tidman (and also an employee for Equality Act purposes) throughout the periods when he was driving Mr Tidman’s taxi.