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10 January 2013

Court of Appeal ruling on employment status

In a recent decision, the Court of Appeal has held that a nightclub lap dancer was not in fact an employee. 

Many will recall this widely-publicised case concerning a former Stringfellows lap dancer, Nadine Quashie, and her claim against the club for unfair dismissal. The decision of first instance at the employment tribunal dismissed Quashie’s case on the basis that she was not an employee, and therefore not entitled to bring a claim for unfair dismissal. The Employment Appeal Tribunal (EAT) later overturned that decision and found that Quashie was in fact an employee and therefore able to pursue her claim.

Stringfellows appealed to the Court of Appeal, with the Court handing down its judgment on 21 December 2012.

The Court of Appeal Decision

The Court of Appeal considered the various applicable tests in order to determine whether or not Quashie had employment status, including the key test of mutuality of obligation.  The Court noted that the dancers were required to work a minimum number of shifts and had to complete holiday booking forms in order to take holiday. It was also observed that dancers paid a £15 fee to dance during a particular shift, and were also responsible for the payment of the House Mother, DJ, and hairdresser. On some occasions, the Court heard, Quashie would find herself out of pocket after a night’s work.

Although the Court of Appeal found that “there plainly were mutual obligations of some kind in place when [Quashie] was actually working”, it placed much greater emphasis on the fact that Stringfellows had been under no obligation to pay the dancer anything at all. The fact that the dancers took the economic risk was, according to the Court, a very powerful pointer against the contract being a contract of employment. The club did not employ the dancers to dance; rather, the dancers paid to be provided with an opportunity to earn money by dancing. The decision of the EAT was consequently ‘quashed’, with the Court of Appeal finding that Quashie was not in fact an employee and therefore could not pursue her claim for unfair dismissal.

Comment

It is well established that courts and tribunals are entitled to look beyond the express terms of any contractual agreement to determine the reality of the working relationship.  In this case, the Court was satisfied that, largely due to the economic risk taken by the dancers, the essential element of mutuality for an employment contract to exist was not present.

A copy of the Court of Appeal judgment is available here.

For any employment enquiries please contact the Steeles Law employment team on employment@steeleslaw.co.uk or 01603 598000.