Qualified to claim unfair dismissal (part 2)

12 Oct 2012

To claim unfair dismissal, the Claimant has to have been an employee of the employer.  If he is self employed or a worker he cannot make such a claim.

The Employment Appeal Tribunal (EAT) in Knight v Fairway and Kenwood Car Services Limited, in a judgment published on 3 September 2012, had to consider whether a taxi driver who worked seven days a week was an employee or not.

The Claimant had a written agreement under which he rented a taxi.  Under the terms of that agreement, it was entirely the Claimant's decision as to whether he worked or not.

The EAT concluded that, based on the written contract, provided the Claimant paid the rent on the taxi and gave suitable notification to the taxi company, there was no obligation on the Claimant at work at all and as such he could not be an employee.

Counsel for the Claimant made the point that, in fact, the Claimant worked seven days a week and that economically he had to work if for no other reason than he had to pay the taxi rent.  Counsel argued that the EAT should look beyond the written contract and infer a legal obligation to work.

The EAT said that the contract between the parties was genuine and not a sham and so they refused to effectively rewrite the clear terms of the written contract. 

The EAT’s judgment was that the Claimant was not an employee and therefore not entitled to claim unfair dismissal.

Our view:

This is a case which could easily have gone either way.

Employers who want to pretend that employees are self-employed should not get too excited by this judgment.  However, that being said, in marginal cases, a properly drafted contract will be essential for employers arguing that someone is self-employed and therefore not able to claim unfair dismissal.