14 August 2012
Employment Lawyer discusses Employment status - stripped down to the bare essentials
One very interesting case recently involved a lap dancer, Ms Quashie, who established that she was an employee of Stringfellows. Traditionally lap dancers are regarded as self employed, a view even shared by Ms Quashie, when she started working there. But when Ms Quashie was dismissed from Stringfellows she brought a claim for Unfair Dismissal against them. To proceed with her claim and to obtain compensation she had to establish that she was an employee. Stringfellows contended that she was self employed and could not claim Unfair Dismissal. There are various hurdles that an individual must overcome to establish employment status. Work must be provided personally, there must be a “mutuality of obligation,” i.e in this instance what was relevant was to establish some legal obligation between employer and employee and there must be some form of control over the employee. Stripping this case to its bare essentials, (apologies I could not resist), Ms Quashie could prove that she provided her services personally - she could not provide a substitute for her services. As for legal obligations, when Ms. Quashie was absent from work, she was not retained. There was no paid holiday or any other payment, and she could stay away for as long as she liked. This is more consistent with being self employed. However the control element in these proceedings was key. The stringent rules imposed on the dancers revealed a substantial degree of control which was consistent with an employment relationship. This included fines for non-attendance, the requirement to work specific days, a very specific dress code, being required to offer free dances, being told what to do on stage, and a need to seek permission to leave before the end of the shift. The poignant references within the judgment as to the "bare question of law," remaining, "unfulfilled" and issues being "teasingly left," I am sure added to the spice in the proceedings, but the floodgates are now well and truly opened. The judgment provides a useful insight into how Employment Tribunals react to employers who seek to minimise their exposure to claims by considering staff as self employed while imposing such stringent control.An individual working within this industry might now consider whether they have claims for holiday pay, a written statement of terms of employment, whether they can make claims for 3rd party harassment and whether they can assert employment rights consistent with true employees in the event of Dismissal.However any claim is a double edged sword as any successful claim to the employment tribunal can assist a claim by the Inland Revenue on the taxable status of these earnings!
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Wednesday 22nd November 2017