Written by Brabners LLP
The issue of “dual” or “joint” employment under UK law is problematic.
Although joint employment is a recognised concept in other jurisdictions, notably in the USA, the idea of someone having two employers in respect of the same job does not sit easily under UK law.
There have been several cases over the years which have considered the idea of joint employment and the difficulties inherent in the concept.
In the recent most case of United Taxis Ltd v Comolly and another, the Employment Appeal Tribunal concluded that a taxi driver could not simultaneously be an employee and a worker of two different employers in respect of the same work.
Facts of the case
This case concerned a taxi driver called Mr Comolly and a licensed taxi operator called United Taxis. United Taxis is a co-operative owned by member-shareholders. One such member-shareholder was Mr Tidman.
Member-shareholders such as Mr Tidman paid a monthly fee to United Taxis in return for gaining access to the taxi work made available by United Taxis. The only way in which a non-shareholder driver (such as Mr Comolly) could carry out taxi work for United Taxis’ customers was by being engaged through one of the member-shareholders.
Mr Comolly was engaged via Mr Tidman to drive United Taxis’ passengers. After that relationship ended, Mr Comolly brought various claims in the Employment Tribunal (“ET”) including unfair dismissal, failure to pay holiday pay, and age discrimination. Mr Comolly asserted that he was either an employee or a worker of United Taxis and/or Mr Tidman and therefore one or both of them were liable for his claims.
The ET determined that Mr Comolly was a worker of United Taxis and an employee of Mr Tidman at the same time.
United Taxis and Mr Tidman appealed to the Employment Appeal Tribunal (“EAT”). They argued, firstly, that Mr Comolly was self-employed and secondly, if he wasn’t self-employed, then he could not be an employee/worker of both United Taxis and Mr Tidman in relation to the same work.
On the question of joint employment, the EAT referred to one of the earliest cases on dual employment from 1826 in which the court had decided that “a servant cannot have two masters”. The EAT pointed out that this principle does not, of course, prevent someone from having different employers for different jobs, but the idea of having two employers in relation to the same job is problematic in practical terms. For example, if someone has two employers in relation to the same job, must both employers make the decision to dismiss an employee before they are effectively dismissed? And which employer would be obliged to undertake a disciplinary process in cases of gross misconduct, or must they both do it? The EAT’s conclusion was that joint employment was not “legally possible”.
The EAT also decided that in the circumstances there was no contractual relationship between Mr Comolly and United Taxis, whether on a self-employed basis, as a worker or as an employee.
In relation to Mr Tidman, the EAT concluded that Mr Comolly was a worker of Mr Tidman, but there was an insufficient degree of control exercised by Mr Tidman over Mr Comolly to establish an employment relationship.
The notion of joint employment is becoming increasingly popular in the recruitment sector in particular, typically whereby a recruitment agency and a service provider will both employ a worker with a view to obtaining VAT advantages.
Whilst we are not aware of any reported cases which have considered this specific model, the case of Mr Comolly, and many cases before it, make clear that in UK law the idea of being employed by two entities in relation to the same job does not work.
This bulletin is for general guidance only and should not be used for any other purpose.
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