The question of employment status often has employers scratching their heads. Well, Peter Stringfellow can now sleep soundly in his bed knowing that, for one of his employees, this particular dilemma has been resolved.
This case serves as a neat reminder of the factors that a Tribunal will consider when deciding whether someone is an employee or self-employed.
The employee in question is one Nadine Quashie, a former exotic dancer who earned £200,000 per year at Stringfellows and who is suing the chain of “gentlemen’s clubs” for unfair dismissal. Unfortunately for Ms Quashie, the judiciary has traditionally viewed strippers as self-employed, meaning that they could not take advantage of the employment rights afforded to employees.
However, the EAT has challenged that view and decided that, in fact, Ms Quashie was an employee. She had previously raised a claim for unfair dismissal at the Employment Tribunal, but her case failed at the first hurdle when the Tribunal found that she was not an employee. In general, there are three factors that the Tribunal will consider, alongside the specific facts and circumstances of each case, when making this determination. These are; control, personal service and mutuality of obligations.
In this case, the ET found that Ms Quashie did have to provide “personal service” (i.e. she could not send a substitute in her place) and that the club had the necessary control over her activities. These factors would normally point to an employee relationship; however, the Tribunal held that Ms Quashie was self employed since there was no mutuality of obligations. In other words, Ms Quashie was not obliged to accept work and Stringfellows was not obliged to provide it.
The EAT disagreed and found that there was mutuality of obligations between the parties. Ms Quashie’s shifts were organised according to a rota and, when she attended work, Stringfellows were obliged to allow her to dance to earn money. A variety of other factors suggested that an “umbrella contract” existed linking each night of employment. These included arrangements for holiday notification, the requirement to attend a weekly staff meeting and the existence of disciplinary procedures for missed dances or attendance at meetings.
The case has since been remitted to the Employment Tribunal to make a decision on Ms Quashie’s unfair dismissal claim. If victorious, she will be the first stripper in the UK to successfully sue her employers for unfair dismissal. In the meantime, the current EAT decision serves as a solid (albeit racy) reminder of the Tribunal’s approach to questions of employment status.