The case of United Taxis Limited v Comolly was heard by the Employment Appeal Tribunal in March of this year. The outcome was reported at the end of June.
Frettens were acting for United Taxis in this case who were the Respondent in the original Employment Tribunal case and the First Appellant at the Employment Appeal Tribunal.
In this article, Chris Dobbs provides a brief summary of the case, its outcome and implications for employers.
The original case
The original case was running at the time of the Uber judgment and in many ways appeared fairly similar.
Mr Comolly was a taxi driver registered with United Taxis and did work driving passengers of United Taxis through one of the company’s shareholders, Mr Parkinson.
When that relationship ended, Mr Commolly continued to drive for the company’s passengers through an agree with another of the shareholders, Mr Tidman. It was Mr Parkinson and then Mr Tidman who owned the taxi driven by the Claimant.
The claims
That relationship ultimately ended, at which point Mr Comolly brought claims for unfair dismissal, wrongful dismissal, failure to pay holiday, unlawful deduction of wages and also a complaint of age discrimination against United Taxis with Mr Tidman named as an individual co-Respondent.
An immediate preliminary issue arose which was fundamental to case: was Mr Comolloy an employee or worker of United Taxis, of Mr Tidman, of both, or of neither?
What did the original Tribunal decide?
At a preliminary hearing in 2021, the Tribunal found that Mr Comolly was an employee of Mr Tidman’s and a worker for United Taxis.
They based their opinion on an interpretation of recent case law, notably Uber, which took note of United Taxis being a significant source of work for the Claimant, that he was subject to its rules and procedures and that it exercised a degree of control over how he conducted himself while working.
Frettens were instructed to appeal the judgment on the basis that an individual cannot be an employee of one employer and a worker of another in respect of the same work.
The appeal also highlighted broader issues in the Tribunal’s reasoning such that even if a dual relationship could exist, there was nothing in evidence to imply a contractual relationship between Mr Comolly and United Taxis for the specific work.
What was the outcome of the appeal?
The Employment Appeal Tribunal therefore had to address the rarely litigated issue of joint or dual employment. It concluded that Mr Comolly could not be a worker of a taxi company and also an employee of the individual who owned the taxi for the same work.
The EAT, in fact, substituted the decision entirely and found Mr Comolly to be a worker of Mr Tidman.
Dual employment
The EAT explored the existing case law around dual employment and HHJ Auerbach pointed out that this case law considers the position to eb “problematic”.
Logically, if a relationship where that kind of status is agreed can be said to be “problematic”, it must also be so where the alleged dual-employment would mean the same individual was a worker of one employer and an employee of another.
The only conclusion, he felt, was that Mr Comolly could only be a worker of Mr Tidman.
As a separate point, the EAT also ruled that the Tribunal had incorrectly found that a commercial contract had to be implied between Mr Comolly and United Taxis on the facts.
Related: Frettens advise in key taxi worker status case
An Employment Solicitor’s View
Chris Dobbs said: “The question of dual employment comes up so rarely that it was novel for all involved to see how the Employment Appeal Tribunal tackled the issue. The case highlighted several key things which should always be remembered when litigating in the Tribunal and especially on the question of status:
Firstly, the importance of case law particularly in rarely litigated subjects. The EAT referred to cases which pre-date most current legislation in reaching its decision and this alone is proof that unusual or even new concepts arise more often than you might think in the employment sphere.”
Status on individual facts
Chris continues: “Secondly, the fact the EAT reviewed every element of the original judgement shows just how important it is to consider the question of status on the individual facts. A simple label of worker/employee/self-employed is not enough and the courts have been clear they will look beyond such basic distinctions.
But, this does work both ways: a full examination of the real working relationship is needed to make that judgment.”
Difference between ‘worker’ and ‘employee’
“Thirdly, to appreciate the distinction in rights between worker and employee especially.” Says Chris.
“The line is often blurred and the distinction between one and other can be difficult to find but the implications for redundancy protections, unfair dismissal rights and paid statutory entitlements are considerable.”
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