Quashie v Stringfellows Restaurants Ltd
FACTS
Ms Quashie worked as a lapdancer in a Stringfellows club. Her services were terminated and she sought to bring a claim for unfair dismissal. The question arose as to whether she was employed or self-employed and whether or not the contract had been performed illegally, barring her claim because she had represented herself to Her Majesty’s Revenue and Customs as self-employed.
Ms Quashie’s work was governed by a club agreement, house rules, a welcome booklet, the licence for the operation of the premises and a rota. Dancers provided their own outfits and paid a fee to the club for use of its facilities. Customers paid the club for the dancers’ services, with the club deducting commission, a house fee and fines (eg for being late) and paying the remainder to the dancers. Ms Quashie was required to provide her work personally. She could not provide a substitute.
The club exercised a degree of control over Ms Quashie. She was required to abide by the house rules, which included: being required to work one Saturday and Monday twice a month; attending Thursday meetings; complying with a dress code; and being told what to do on stage. If she did not work for more than four weeks she had to re-audition. If she was on the rota, she would be fined if she did not attend.
DECISION
The employment tribunal held that Ms Quashie was not an employee on the basis that there was no mutuality of obligation. The club was not required to pay Ms Quashie: she paid the club to be able to dance there. There was no obligation to provide work for which she would be paid and no obligation on her to work.
Ms Quashie appealed to the Employment Appeal Tribunal (EAT), which upheld the appeal. There was mutuality of obligation on an analysis of the documents and the working relationship. There was a contract involving the payment to Ms Quashie of money for work done. There was sufficient control for that contract to be one of employment and there was personal service. Each night she attended, Ms Quashie was obliged to work as directed by management. On the nights she attended, she was an employee.
The question then arose as to whether or not there was an umbrella contract covering the whole period of 80 weeks, during which Ms Quashie danced at the club. The EAT held that, if engagement on a night on which she was working was employment, the contract started at the date of acceptance, which was when the rota was published. On that basis, most short gaps between engagements constituted employment. In addition to the contractual commitment, once the rota was fixed, there was a continuing obligation to turn up to Thursday meetings. That was also sufficient to establish an employment relationship. In addition, she could not take an extended holiday. There were mutual obligations on the nights on which she worked and those subsisted between the periods of employment to give Ms Quashie an umbrella contract.
The EAT remitted the case to the tribunal to determine the unfair dismissal claim and whether or not the contract was illegal in its performance.
IMPLICATIONS
While this case is fact specific, it illustrates the importance of construing all the facts in the relationship between the parties when determining employment status. It is noteworthy that the decision went contrary to a common industry understanding among both clubs and dancers that the dancers are self-employed.
The case is a useful reminder that the more control an organisation seeks to exercise over workers who it wishes to be engaged on a self-employed basis, the more likely it is that they will in fact be held to be employees.
However, it will be interesting to see the tribunal’s conclusion on the illegality issue as this may prevent employees effectively “having their cake and eating it” by claiming to be self-employed for tax purposes but claiming employment status to be able to bring an unfair dismissal claim when the relationship terminates.
Mary Clarke, partner, DLA Piper
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