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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 Employment Appeal Tribunal's (EAT) decision on
Quashie's appeal1. 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.
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In October 2012, the Court of Appeal confirmed that a Service Provision Change ("SPC") TUPE transfer can only occur where the client who receives the service, before and after the change, remains the same (Hunter v McCarrick [2012] EWCA Civ 1399).
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