Self Employed or Not?

Was a minicab driver an employee where, under his contract, he could work as and when he liked? The answer to this question is by no means straightforward, some might say it’s as complicated as the rules of some of the velodrome events, but ‘no’, said 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 had to deal with VAT himself. He left after a disagreement and claimed damages for wrongful dismissal.

The tribunal found there was no contract of employment as there was no mutuality of obligation between the parties. The EAT agreed and dismissed his 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. Mr Knight’s written terms did not require a minimum or reasonable amount of work despite Mr Knight often working 7 days a week.

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