The issue of employment status is one that has vexed employers for years. The issue normally raises its head when the self-employed individual becomes disgruntled and realises that, if they were an 'employee', their rights of action would be much stronger. The latest case to have a good look at employment status is Quashie v Stringfellow Restaurants Ltd. Whilst this of course gives us a golden opportunity to peek into the mysterious world of 'exotic dancers' (including learning what a 'House Mother' is ...), it is also a good excuse to remind ourselves of some of the key tests of employment status.
In order to demonstrate that someone is employed they must show that there is an obligation to provide personal service (i.e. no right to send a substitute); there is a sufficient right of control over, for example, what the individual does, when, where and how; and there is a mutuality of obligation, for example, an obligation to provide work and to do work provided. If these hurdles are passed then the tribunals look at all the other circumstances to see if they are consistent with an 'employment' relationship.
At the initial Tribunal hearing, Ms Quashie established that she provided personal services (no innuendo intended) and was under the control of Stringfellow's in her role as a dancer (no innuendo needed). However, she was unable to demonstrate that there was a mutuality of obligation in the relationship. This decision was appealed to the EAT and they considered whether there were strong enough grounds for the matter to proceed to a full appeal hearing.
The EAT reviewed the initial judgment which had found that, since Quashie was not required to work a set number of nights per week, there was no contractual obligation for Stringfellow's to provide work for which she would be paid (in other words, there was no mutuality of obligation). The EAT however felt that there may be a decent argument that this wasn't correct. It noted that Quashie, like all the other dancers, worked a shift pattern under a rota that was set up and agreed in advance with the 'House Mother' (from the little research we conducted on the subject, none of it 'in the field' we hasten to add, it appears that the role of the 'House Mother' may include, but is not limited to arranging the girl's rota, enforcing the club's rules about conduct, looking after the dancer's money and belongings and generally acting like a typical Mum!).
Anyway, back to the rota ... the EAT felt that Quashie's obligation to turn up on a Monday twice a month and every Saturday suggested there may in fact be a reasonably good argument that this meant there was a mutuality of obligation. Quashie's claim was permitted to proceed to full hearing.
Although not the typical case in which the question of employment status arises, the case is a useful reminder that, no matter what the circumstances, the tests for employment status are the same and will be applied to the facts. As always, you can do yourselves a big favour if you get the terms of the relationship properly recorded in writing and always remain vigilant as to how the relationship is operating in reality. A good broad brush test for whether someone is an employee is very much the same for spotting a stripper, if they walk, talk, dance and take off their clothes like a stripper, they are probably a stripper.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
