Ms Nadine Quashie, former lap dancer at Stringfellows in London, who lost her unfair dismissal case at an employment tribunal in 2010 because it found her to be self-employed, has now won her appeal at the Employment Appeal Tribunal.
In December 2008, Ms Quashie claimed she was unfairly dismissed but Stringfellows said her services were terminated for misconduct, i.e., drug dealing. This followed an 18 month relationship that started in June 2007.
Prior to working as a dancer at Stringfellows, Ms Quashie had worked at another lap dancing club called 'Secrets' on a self-employed basis and it was generally understood within the industry that this was the normal employment status. Before she started lap dancing Ms Quashie had studied finance and accounting at Thames Valley University for 2 ½ years but did not complete the under graduate course. During her time at university she had also been a women's rights officer.
Employment Tribunal ruling
In the original ruling, the Employment Tribunal found that Ms Quashie was required to provide her work personally and could not provide a substitute.
Stringfellows also exerted sufficient control over the dancer which was a pointer towards employment. Ms Quashie had to abide by the rules set out in the 'Welcome to Stringfellows: Cabaret of Angels' booklet. This included being required to work one Saturday and one Monday twice a month, working one night a week at 'Angels' and being required to turn up to Thursday meetings or face being fined for not doing so. She was also required to comply with the 'Angel' image and dress code, being required to perform a number of free dances on the stage/podium/pole or facing a fine for not doing so. The nightclub told her what to do on stage and compelled her to give free dances at midnight, with further fines being imposed for failing to do so.
Where an agreement was reached with a customer that was worth over £300, this had to be authorised by a manager and a manager could even overrule a sum on the basis that they wanted to retain the club's reputation and look after their customers.
As well as having to comply with numerous other rules, Quashie also had to seek permission to leave the club if intending to leave before the end of a shift.
A 'House Mother' took care of the dancers' well being and needs such as minor dress repairs, ironing, make-up and hair. This person would ensure that the dancers were well turned out in their appearance and were properly dressed (seems rather paradoxical!) to maintain the standards of the club. The dancers themselves would provide their own costumes.
Dancers were responsible for paying the 'House Mother' and also the DJ, hairdresser and other facilities provided at the club. An upfront fee of £15 each night, known as a 'tip out' fee, would be paid by the dancers to the 'House Mother' before they commenced their shift. When dancers came into work they would have to report to the 'House Mother'.
All dancers were paid in 'Heavenly Money', which is a form of voucher that avoids actual cash being exchanged between dancer and customer. The club would make certain deductions which included:
- A commission fee; 20% for sums below £300 and 25% for sums greater than £300;
- House fee of £65 per night; and
- Fines; £25 per hour for being off rota; £10 for being late for a stage dance/song; £50 – £100 for being late for a meeting and £25 for missing a free dance.
Cashiers would convert the vouchers into cash and place this in an envelope for the dancer to collect the next day or when they next attended the club.
The Judge however found that there was no mutuality of obligation as the essential element of the wage/work bargain was not present.
Stringfellows were not obliged to pay Ms Quashie anything and indeed did not pay her anything; rather she paid the club to dance at their venues. Often she would go to work and earn nothing because she had not earned sufficient 'Heavenly Money' vouchers to cover the cost of the 'tip out' fee, house fines and commission.
There was no contractual obligation on Stringfellows to provide work and Quashie was not required to work a set number of nights per week but was required, if rostered, to work one Saturday and one Monday every two weeks in a month and one night a week at Angels.
The judge also found that there was no mutuality of obligation in the periods Ms Quashie was not dancing at the club. Although she did need to notify Stringfellows when she went on holiday so that they could arrange their rotas, she was never required to obtain permission to take holiday and it was clear that there were periods when she was not dancing at the club. During such periods she was not required to attend work and Stringfellows were not obliged to pay her anything. Furthermore, Ms Quashie was at liberty to work elsewhere during those periods.
Although she could be fined for not turning up, Quashie was not under any obligation to dance at the club.
She was not retained, not paid holiday or sickness pay or any other type of payment and could stay away for as long as she liked.
Quashie had a degree of financial risk in that she provided her own equipment (presumably stagewear) and sometimes incurred a loss. This, along with an absence of mutuality of obligations, pointed towards self-employment which the judge settled on.
Employment Appeal Tribunal Decision
Judge McMullen, QC, found that the original Employment Judge had erred in her conclusion that Ms Quashie was not an employee on each night she performed work and in the intervening stages when she was on the rota to perform work, on holiday and at all stages in between.
The wage/work bargain could have been satisfied if Quashie had agreed to dance in exchange for accommodation, free meals, fees paid directly to her university, or even for payment of 1p a night! She could make the bargain to dance to Stringfellows tune if the club agreed to let her be seen at the club so as to enhance her reputation, or to keep her hand in, or even for networking.
There was an expectation on both sides of continued engagements and that certainly existed between the dates on the rota.
There was an obligation to turn up each Thursday for a meeting without pay otherwise face penalty. Added to this was the obligation to dance two Saturdays and two Mondays each month.
Ms Quashie could not take an extended holiday because any period of non-attendance that lasted over four weeks would have meant that she would have had to audition again.
Ultimately, the Judge found that Quashie was an employee working under an umbrella contract which would have given her a year’s continuous employment with the club and enable her to pursue a claim for unfair dismissal.
Cross-appeal
Stringfellows had also lodged a cross-appeal on the grounds that the notional contract was illegal because Quashie had made false claims to HMRC on her tax return and child benefit claims. Her tax returns showed income from self-employment and according to counsel for Stringfellows made the following declarations to HMRC:
(A) In June 2009 she gave HMRC an estimation of her income on which they relied of:
- £0 between April 2007 – April 2008 whereas according to her own accounts and earnings data she made a profit of £49,274 plus net commission of £7,020.
- £25,000 between April 2008 – April 2009 whereas her accounts showed a profit of £30,901 to August 2008 plus further earnings of £13,530.
(B) She declared a profit in the year to April 2008 of £9,825 whereas this should have been £49,274 plus further earnings of £7,020.
(C) Her accounts set out the following expenses that she could not explain to the Tribunal and were considered by counsel to be grossly excessive for a dancer:
- £1,040 premises;
- £2,274 motoring;
- £4,613 depreciation and loss of profit.
In addition the Judge also found that Ms Quashie was asserting losses based upon net weekly pay of £2,200, roughly equating to £140,000 gross per annum.
The Judge said that these stark figures required a more careful analysis together with an explanation as to how a person partly trained at university in accounts and law came to put forward such figures.
The cross-appeal was allowed and will be heard together with Ms Quashie's unfair dismissal claim by a fresh three person Tribunal.
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