Niall McMullan of Worthingtons Solicitors Belfast discusses the recent decision of the Court of Appeal in the case of Quashie v Stringfellowes Restaurants Ltd
The Court of Appeal in England and Wales has determined that a lap dancer is not an employee and is therefore not protected by employment legislation that would be afforded to employees.
In the case of Stringfellow Restaurants Ltd – v – Nadine Quashie  EWCA, Ms Quashie brought a claim of unfair dismissal and the preliminary issue for the courts to decide was whether she was an employee as defined by the relevant legislation in England, the Employment Act 1996. The Employment Tribunal in the first instance determined that she was not an employee and the courts therefore had no jurisdiction to hear her complaint of unfair dismissal. Ms Quashie appealed this decision to the Employment Appeal Tribunal (EAT) in England and the EAT upheld her appeal.
Stringfellow Restaurants Ltd appealed this decision to the Court of Appeal in England and Wales and sought to restore the initial finding of the Employment Tribunal. The Court of Appeal noted that there are various tests to be applied to such circumstances when attempting to identify the precise employment status of an individual, whether one is an employee, a worker or self employed. The Court of Appeal recognised that the distinction is important because some rights, including the right to claim unfair dismissal, are conferred on employees whereas others are conferred upon workers, a more widely defined category. All employees are workers but not all workers are employees. Furthermore, if an individual is determined to be self employed they have much less employment protection such as the right to claim unfair dismissal but they do have the right not to be discriminated against. In this case, the Court of Appeal held that the lap dancer working for Stringfellows restaurant was not an employee and could not bring a claim for unfair dismissal. Despite there being much case law and many tests to determine an individual’s employment status, the court within this case acknowledged that no one single test provides a ready universal answer.
The Court of Appeal adopted an approach that the Employment Tribunal relied on in the first instance in finding that the lap dancer was not an employee. To determine that an individual is an employee he must:
1)Provide his own work and skill in consideration of remuneration;
2)Agree that in the performance of his skill he will be subject to the other’s control to such an extent to make that other party master;
3)The other provisions of the contract are consistent with its being a contract of service (employment).
The Employment Tribunal held there was no mutuality of obligation between Ms Quashie and Stringfellow’s Restaurant, an essential element of the contract of employment, and found rather that she was self-employed. Ms Quashie was not required to work a set number of nights, Stringfellows were not bound to provide the Claimant work and the Claimant could work elsewhere when not working with Stringfellows.
The Court of Appeal disagreed with Employment Tribunal that no mutuality of obligations existed at all, for example there were terms of a contract between both parties and Ms Quashie had a duty, at least once on the rota, to work certain days. The salient issue for the Court of Appeal to decide was whether the mutuality of obligations went far enough to render the contract a contract for employment. The Court of Appeal determined that it did not. The Court of Appeal considered two important components of the relationship in determining that Ms Quashie was not an employee. Firstly, the fact that the lap dancer took the economic risk of potentially being out of pocket at the end of the night once she offset her obligations to pay the DJ, House Mother (person who took care of the dancers) and paid any fines to the restaurant that they incurred as a result of being late etc...Secondly, the fact that the terms of the contract involved the dancer accepting that she was self employed, and that she conducted her own affairs on that basis, paying her own tax. Whilst this second point is to be considered together with an assessment of all the relevant facts, and is not conclusive as a stand alone point, the Court of Appeal did recognise that in a case where the position is uncertain, where such a term exists, it can be decisive.