This month’s newsletter highlights some critical aspects of employment law underscoring the evolving interpretations of workers’ rights, employer obligations and procedural safeguards. The EAT has clarified worker status, once again, providing guidance on how a black cab driver supplementing his income using a ride-hailing app was not a “worker” but operated independently, contrasting with the Uber precedent emphasizing factors like business autonomy and flexibility in accepting or rejecting fares. Another case showed the EAT upholding the inadmissibility of pre-termination settlement negotiations in unfair dismissal claims unless improper behaviour is evident, reaffirming the protective scope of “without prejudice” conversations. And lastly, an employer has been found liable for unfair dismissal and discrimination after firing an employee upon learning she was pregnant during her return from maternity leave, with the tribunal spotting inconsistencies in the employer’s rationale.
- Worker Status: Driver using a black cab app was not a worker
- Unfair Dismissal: Evidence of pre-termination negotiations inadmissable
- Unfair Dismissal: Pregnant employee sacked when pregnant on return from maternity leave
Worker Status: Driver using a black cab app was not a worker
In Johnson v GT Gettaxi (UK) Ltd [2024] EAT 162, the EAT held that the Claimant was not a worker of the Respondent company. The Respondent operated a customer application which allowed members of the public to order black cabs, rather than hailing a black cab on the street. Licensed black cab drivers could sign up to the driver app, are free to ply for hire while signed up to the app and can register with other similar taxi apps at the same time as using the driver app.
The Claimant was a licensed black cab driver from April 2014. He signed up and used the Respondent’s app between April 2015 and 2017 and made 171 journeys, making up approximately 5% of his earnings. In 2020, when he re-applied to use the app, his application was refused. He believed that this was because he had made protected disclosures. This gave rise to a preliminary issue as to whether or not the Claimant was a worker under s.230 of the Employment Rights Act 1996.
The case had obvious echoes of Uber BV & Ors v Aslam & Ors [2018] EWCA Civ 2748, where the Supreme Court held that Uber drivers were workers. However, both the employment tribunal and the EAT found that the Claimant was not a worker of the Respondent and that the Respondent’s drivers, more generally, were not workers. They were in business on their own account as black taxi drivers. The use of the Respondent’s app was just a way to increase their business. The following points were relevant to this conclusion:
- No penalties were imposed by the Respondent for rejections of rides offered. This indicated that the Claimant was in business on his own account.
- The Claimant was free to follow the routes he considered best and there was no penalty for not following the GPS route (unlike in Uber v Aslam).
- The Claimant was given limited details about passengers on accepting fares. There was nothing stopping the Claimant from making arrangements direct with passengers for other trips.
- Drivers were able to increase their earnings by plying for hire in the traditional way as a black cab driver or by signing up to other apps. This was different to Uber, as Uber drivers could not ply for hire in the same way as a black taxi can.
Unfair Dismissal: Evidence of pre-termination negotiations inadmissable
In Gallagher v McKinnon Auto and Tyres Ltd [2024] EAT 174, the Employment Appeal Tribunal upheld the tribunal’s decision that pre-termination negotiations between the Claimant and the Respondent were inadmissible in his unfair dismissal claim.
Under s.111A of the Employment Rights Act 1996, pre-termination discussions, known as ‘protected conversations’, are inadmissible in ordinary unfair dismissal claims if conducted without ‘improper behaviour’, allowing confidential conversations about mutually agreed employment termination terms, even without a prior dispute. The provision is supported by an ACAS Code.
The Claimant had worked as a branch manager for the Respondent and due to illness had been absent. When he returned to work, the Respondent decided his position was no longer needed and proposed a redundancy process. At a meeting stated to be ‘off-the-record’, the Claimant was offered a settlement agreement and given 48 hours to respond, with the indication that redundancy would follow if he declined. The Claimant refused and was subsequently dismissed for redundancy. He claimed unfair dismissal and attempted to use the settlement discussions in evidence. The tribunal ruled these discussions were protected pre-termination negotiations, and since there was no improper behaviour, they were inadmissible.
The Claimant appealed to the EAT, arguing that the tribunal’s decision in this regard was perverse. He argued there was improper behaviour as:
- He was told the meeting was a ‘return to work’ meeting and was taken by surprise when it was used to propose severance terms – it was therefore set up under false pretences;
- He was only given 48 hours to consider a redundancy offer of £10,000, contrary to ACAS guidance suggesting a minimum of 10 calendar days; and
- He was told his role was redundant, therefore exerting undue pressure on him implying his dismissal was inevitable if the offer was not accepted.
The EAT upheld the decision of the ET. In dismissing the appeal, it held that 1 and 2 did not represent improper behaviour in the circumstances: the discussions were calm, and the Claimant was given an opportunity to consult with family and seek advice. While the meeting’s purpose was not transparent, this did not amount to impropriety sufficient to override the statutory inadmissibility of the negotiations. The EAT agreed that the 48-hour deadline for considering the verbal offer was not unreasonable under the circumstances. The Claimant could have accepted, countered, or rejected the offer. The Respondent’s statement that the role was redundant was found to relate to initiating a redundancy process rather than a definitive dismissal threat.
In respect of 3, the EAT held that it was important to distinguish redundancy situations from disciplinary situations. The ACAS Code does state that a form of undue pressure can be telling an employee that, if they do not accept the offer, they will be dismissed. However, this guidance specifically refers to a disciplinary situation. In this case, a redundancy situation had arisen. It was accepted that the Respondent had told the Claimant that his role was redundant. However, this did not mean that dismissal was inevitable as there were still the possibility of alternative employment.
Unfair Dismissal: Pregnant employee sacked when pregnant on return from maternity leave
In N Twitchen v Genu Prima Ltd T/a First Grade Projects and J Morgan [2024] UKET 1601455/2023, an administrative assistant who was dismissed from her job after returning from maternity leave pregnant has been awarded £28,706.76 by a tribunal.
The Claimant attended a meeting with the managing director, Jeremy Morgan, in February 2023 that began “positively”, with him “saying the business was doing well” and explaining they recently managed to secure a contract with the NHS. Mr Morgan went on to say he was looking forward to her coming back to work and they agreed what hours she would be working. However, towards the end of the meeting, the Claimant admitted she was pregnant again. When her maternity leave ended at the end of March, no one contacted her about her return to work and they failed to respond to an enquiry about her holiday allowance for later in the year. A little while later, following other contact between the two in April, Mr Morgan called to say that following financial difficulties, late payments and a new software system being installed, she was being made redundant.
The judge found there was significant inconsistency in Mr Morgan’s reasoning for making the Claimant redundant. During their February meeting, he had claimed the business was doing well and made no mention of financial difficulties. He also hadn’t made any mention of the new software that supposedly made the Claimant’s role obsolete, even during their April phone call. No evidence of either had been produced during the tribunal case and at no stage did he send the Claimant a written statement setting out the reasons for the dismissal. He therefore ruled that the Claimant was dismissed because she was pregnant.
The judge found that her dismissal was “unfair, discriminatory, and caused significant emotional distress.” He emphasised that being fired while pregnant and losing financial stability had a profound impact on her, particularly given her family responsibilities.
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