18 July 2012 #Employment
This was the question that an Employment Appeal Tribunal recently had to consider in Quashie –v- Stringfellows Restaurants Ltd.
Miss Quashi had been a lapdancer at a Stringfellows gentleman’s club, Angels, in London. She brought an unfair dismissal claim against Stringfellows, and for this needed to show that she was an employee.
Miss Quashi had initially understood that she was self-employed, and this is also how the industry had regarded the engagement of lapdancers. The Employment Tribunal had agreed with this when it held that she was self-employed. However, Miss Quashi appealed the Tribunal’s decision and the matter therefore went before the EAT.
To determine her employment status the EAT considered whether there was sufficient control by the club of Miss Quashi and whether there was mutuality of obligations between her and the club. On the facts, the EAT ruled that these tests were met and that therefore she was an employee.
The facts were that Miss Quashi was required to attend the club personally and perform on her rostered nights. She could not send a substitute. She was also subject to various rules set down by the club, and breach of some of these would result in her being fined. For example, she was obliged to perform a certain number of free dances and to attend an unpaid weekly meeting. She was also not allowed to take an extended holiday and was required to notify the club when she was going on holiday. In return, the club was obliged to provide her with the opportunity to dance for customers on the nights she worked. The customers would pay for her services using “Heavenly Money” vouchers, which the customer had bought from the club beforehand. The club would then pay Miss Quashi by exchanging the vouchers into cash after deducting the club’s commission, a set fee for the House Mother and any club fines that she incurred. The EAT held that this amounted to an employer-employee relationship, including during the times when Miss Quashi was between rotas.
However, this is not the end of the matter for Miss Quashi. The case has been remitted back to an Employment Tribunal to determine whether Miss Quashi was unfairly dismissed. The ET will also need to consider whether her contract was illegal due to her possibly misrepresenting herself to HMRC as being self-employed for tax avoidance purposes. If this is found to be the case, her contract would be deemed to be void and she would therefore not have a claim for unfair dismissal.