Looking at the current trend in employment status cases it is clear that, in decisions such as Autoclenz v Belcher, courts have favoured finding that individuals are employees, rather than workers or self-employed. The case of Knight v Fairway & Kenwood Car Service Ltd bucks that trend.

The claimant, Mr Knight, was a mini-cab driver who entered into a written contract with the respondent. The terms of the contract expressly provided that Mr Knight was not an employee and stated that he was responsible for paying his own tax and National Insurance contributions. In addition, the contract set out that he could work as and when he liked and could sign on and off duty whenever suited him. In fact, Mr Knight worked seven days a week and generally worked several hours each day. Following a dispute with the company, Mr Knight left and brought a claim for wrongful dismissal in the employment tribunal where his employment status had to be determined at the outset in order to ascertain whether the tribunal had jurisdiction to hear his claim.

At first instance, the Employment Tribunal found that Mr Knight was not an employee and, on appeal, this decision was upheld by the Employment Appeal Tribunal (EAT). The EAT found that, during a specific shift or job, whilst the claimant was signed on to work, it was likely that he was working as an employee but that there was insufficient mutuality of obligation between shifts to imply an umbrella employment contract.

According to the EAT, in order to imply such a contract in the gaps between jobs, it would be necessary to demonstrate that the claimant was obliged to provide some minimum or reasonable amount of work. Here, the terms of the contract between the claimant and the respondent clearly stated that there was no obligation on the claimant to provide work at all. As such, the EAT found that, despite the claimant actually working seven days a week, he did so out of financial necessity, rather than because he was obliged to, and that was insufficient to imply an umbrella contract of employment which would effectively alter the terms of the written agreement.

It is accepted that the written terms of a contract are not determinative of the relationship between the parties and that it is necessary to look at how the relationship works in practice but this case demonstrates a slight shift in attitude, compared to recent employment status cases.

On these facts, the EAT was reluctant to override the express terms of the written agreement purely on the basis that the reality of the working relationship was such that the claimant did actually provide his services on a regular basis. The EAT adopted the approach that the relationship could be explained by a sense of mutual support between the parties but that this fell short of a legal obligation