Following our surprisingly well read piece on the case of Quashie v Stringfellows Restaurants last November, we thought you might like to take a peep at the latest instalment following the EAT's decision on Quashie's appeal. As you may remember, the case concerned the question of whether a dancer at Stringfellows was an employee or self-employed. Not only does the EAT decision contain a useful example of what the tribunals are keen to see when determining this often difficult issue, but it also gives us an opportunity to do another slightly cheeky article too.
By way of a stripped down summary of the facts, Quashie claimed she was unfairly dismissed and Stringfellows defended the allegation by arguing she was not an employee and therefore did not have this right. At the Tribunal, the finding was that she was not an employee as there was no 'mutuality of obligation' between the parties for two very good reasons. Firstly, there was no wage/work bargain as, in effect, Quashie had to pay Stringfellows to dance there and her money came from the punters rather than Stringfellows. Secondly, when she was not working, the Tribunal found that there was no ongoing contract of employment between the parties.
The EAT's view was poles apart from the tribunal's and they held that the decision was wrong. The naked truth of the matter was that there was mutuality of obligations on each night that Quashie worked. She had to attend in accordance with the rota and Stringfellows had to let her dance to earn money. However, Stringfellows controlled her activities. She had to perform in accordance with its directions and had to dance on stage at various times through the night without pay – the bare cheek of Stringfellows, you might think. Stringfellows was under an obligation to pay Quashie under its voucher system (the vouchers are called 'Heavenly Money'. We kid you not). Stringfellows could impose fines suggesting that discipline was built into the relationship, consistent with an employment contract. The fact that Quashie could earn nothing on a particular evening was irrelevant since there was nothing inconsistent with an employment relationship in an arrangement where wages are not paid unless a certain performance is achieved, whether by volume, time or quality!
These factors pointed to Quashie being an employee on the night but she now needed to show whether there was an ongoing contract between the parties to get the requisite service to claim unfair dismissal. The EAT found that Quashie had shown more than enough to make that finding.
Looking at the whole period, the combination of nights actually worked, periods between nights booked on the rota, compulsory attendance at Thursday meetings, holidays, agreed changes and absences might mean there were no gaps but, if there were, the regular performance of work by Quashie and/or the findings that she had an expectation of work, meant that there was an ongoing employment relationship. The only suggestion to the contrary was the fact that Quashie could work elsewhere on her nights off. However, the EAT considered that this was insufficient to undermine the balance of the findings.
Such cases are ultimately always decided on their own facts, but businesses can also put together lists of those circumstances that point towards and those that point away from employment status - and at least make an educated assessment of what the true position is. That said, in most cases asking the following question should be very revealing ... does this person act like someone that is conducting their own business (self employed) or are they sufficiently under the control of the business (and thus employed)? If there is any doubt then come and see us and we will try to help stop you falling into any booby traps.
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.
