Tuesday 4 September 2012

Employment status - minicab driver

[Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary]

Was a minicab driver an employee where, under his contract, he could work as and when he liked?

No, says the EAT in Knight v Fairway & Kenwood Car Service.

The Claimant was a minicab driver working for Fairway & Kenwood. His written terms provided that, as long as he made weekly rental payments and sent appropriate notifications to the company, he was allowed to work as and when he pleased. He paid his own tax and national insurance and, if registered for VAT, had to account for VAT to HMRC. He left after a disagreement and claimed damages for wrongful dismissal.

The employment tribunal found there was no contract of employment as there was no mutuality of obligation between the parties. The EAT, although expressing some criticism of the way the legal test was applied by the employment judge, dismissed the appeal.

The EAT said that it was "likely" that the Claimant was employed either throughout a particular shift or from the beginning to end of an individual job, and there was an overarching umbrella contract. But that umbrella contract was not an employment contract. His written terms did not require a minimum or reasonable amount of work (applying the test set out by Langstaff J in Cotswold Development Construction Limited v Williams). Nor was there scope for inferring such an obligation from the fact that the Claimant in fact worked 7 days a week. This meant that there was no jurisdiction to hear the Claimant's claim.

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