In Quashie v Stringfellows Restaurants Ltd the EAT concluded that a lap dancer could bring an unfair dismissal claim because she was an employee.
The claimant had worked at a lap dancing club for about 18 months. Although both the club owners and the claimant herself regarded the dancers as self-employed, there was a contractual rota for dancers and they were obliged to attend a weekly meeting, notify the club owners about holidays and had to re-audition if they did not dance for a period of four weeks. The dancers were paid by a system of vouchers bought by customers from the club and passed on in cash to the dancers, subject to commission for the club, some other deductions and any fines, such as for lateness.
The claimant was dismissed following allegations of drug taking. Her unfair dismissal claim was rejected by the tribunal because there was insufficient "mutuality of obligation" for her to be considered an employee. This decision was reversed by the EAT, who found she was an employee, on each night she performed and also in the intervening times, when she was on the rota or on holiday, under an "umbrella" contract. She therefore had sufficient continuity of service to bring an unfair dismissal claim.
Although the decision was one made very much on its somewhat unusual facts, the EAT decided that the decisive factor was the club's right to control the dancer's activities while she was at work. She had to perform at their direction; the fact that her pay came indirectly through vouchers from customers was immaterial. The EAT regarded the issue of control as critical, relegating the mutuality of obligation test to second place, although in any event, this was satisfied by the claimant's duty to turn up in accordance with her contractual commitment to the rota and the club's reciprocal duty to give her the opportunity to earn money.
In deciding that as well as the claimant being an employee on each night she performed, there was also an overarching or umbrella contract, the EAT looked at the 80 weeks of the relationship as a whole. Obligations such as the regular weekly meetings, the rule that extended holiday could not be taken and the re-auditioning requirement, all led to the conclusion that the claimant had employment status throughout.