The EAT (HHJ McMullen QC) has Quashie v Stringfellows Restaurants Limited reversed an employment tribunal’s decision dismissing an Unfair Dismissal claim on the grounds that the lap dancer Claimant was not an employee.
Miss Quashie worked under a standard industry contract where the dancer is considered to be self employed. Patrons of the club would put ‘heavenly money’ (club vouchers with a monetary value) into dancers’ garters. These vouchers were handed in by the dancers at the end of the night, and the Respondent paid the dancers the value of their vouchers subject to agreed deductions. Miss Quashie worked to a rota imposed by the Respondent and was entitled to work when on the rota.
In a fact-specific Judgment, the EAT held that on a proper construction of the employment tribunal’s findings, the Claimant was an employee. The contract gave the Respondent had the right to control the Claimant’s activities when she was at work. The ‘umbrella contract’ covering each separate engagement, under which Miss Quashie operated, gave rise to an expectation of continued engagement, hence there was sufficient mutuality of obligation for employment status.
The EAT remitted the case to consider the Unfair Dismissal complaint and permitted a tax-related illegality defence raised by the Respondent to be considered.
The case is set to have massive implications for the lap dancing industry. Dancers would on the face of it be entitled to full employment status (which would include the right to be paid national minimum wage, not to suffer unauthorised deduction from wages and protection from unfair dismissal) and HMRC may well seek to recover the tax owed for those previously engaged as self employed individuals. Owners of clubs should take urgent legal advice as to whether they need to restructure their operating methods.
Leathes Prior’s Employment Team trainee solicitor Mark McWilliams has been helping Miss Quashie on a pro bono basis since the failure of her first hearing at the employment tribunal.
For advice on any issues of employment law, contact the Employment team
