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Can a person be an employee or worker of two different employers at the same time in respect of the same work?

No, held the EAT in United Taxis Ltd v Comolly.

Mr Comolly was a taxi driver who carried-out work driving United Taxi’s passengers through an agreement with one of its shareholders, Mr Tidman, and using Mr Tidman’s licensed taxi. The tribunal held that Mr Comolly was a worker of United Taxis and an employee of Mr Tidman in respect of the same work: driving United Taxi passengers.

The EAT disagreed, holding that it was not possible for Mr Comolly to be employed or engaged by two different employers in respect of the same work. The EAT noted that the key cases of Brook Street Bureau v Dacas and Cable & Wireless v Muscat had found the concept of dual employment to be “problematic” and concluded that it could not “see how [the problems] could be overcome”.

The EAT went on to substitute a finding that there was no relationship between Mr Comolly and United Taxis and that Mr Comolly was a worker of Mr Tidman. It held that the tribunal, in concluding that Mr Comolly was an employee of Mr Tidman, had failed to consider the nature, extent and source of the control exerted by Mr Tidman over Mr Comolly. In particular, although Mr Tidman controlled when the taxi was available to Mr Comolly, he had no control over what Mr Comolly did during the time that the taxi was available to him.