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Performers’ Status

30th May, 2012

The Employment Appeal Tribunal (EAT) has recently held that a lap dancer is able to fall within the definition of an “employee” (as defined by section 230 of the Employment Rights Act 1996) for the purposes of bringing an unfair dismissal claim.

In Quashie v Stringfellows Restaurants Limited UKEAT/0289/11, the Claimant worked under a standard contract but it was generally understood in the industry that the relationship was one of self-employment.  The Claimant worked on a rota; was entitled to work when on the rota; and was paid by the Respondent for vouchers which she received from clients, subject to agreed deductions.

It was held by the employment tribunal that the Claimant and Respondent’s relationship did not possess the key factors relevant in deciding whether an employment relationship exists, as set out in Ready-Mixed Concrete (South East) Limited v Minister of Pensions and National Insurance [1968] 2 QB 497. The key factors in an employment relationship are:

–          personal service;

–          employer control; and

–          mutuality of obligation.

The employment tribunal held that although the first two factors were satisfied, there was no mutuality of obligation.  The employment tribunal’s decision was based on the fact that there was no obligation on the Respondent to pay the Claimant if she did not earn the required amount in vouchers, she did not need permission to go on holiday and she could work elsewhere.

On appeal, the EAT disagreed with the employment tribunal’s decision and held that the Claimant was capable of being an employee due to:

–          the Respondent having the right to control the Claimant’s activities when she was at work;

–          the Claimant having to attend work in accordance with the rota;

–          the Respondent having to give her the opportunity to dance to earn money; and

–          the Respondent’s obligation to pay the Claimant under the voucher system and under its Council licence.

For continuity purposes, the EAT went on to hold that there was an employment relationship under an umbrella contract.  This was due to a number of factors including: combination of nights actually worked, periods between nights booked on the rota and attendance at a weekly meeting.

The case has been remitted to consider whether the Claimant’s contract had been void for illegality (in light of representations made by her to HM Revenue and Customs) and, if not, to consider the unfair dismissal complaint.

This could potentially lead to claims from other regular performers who previously saw themselves as self employed rather than having a status such as employee, such as: musicians and other entertainers.

If you have any queries arising from the above case or regarding employment status generally, please do not hesitate to contact Catherine Kerr in the Employment team at [email protected].

 

 

 

 

 

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