Stripping for a living may be less attractive in the light of a recent Court of Appeal decision. A dancer, sacked from Stringfellows, took her case to the Employment Appeal Tribunal claiming she was an employee and had been unfairly dismissed. She stood to benefit from considerable financial compensation and to be reinstated. Mr Stringfellow was working on the basis that his ‘Cabaret of Angels’ were self-employed and enjoyed no such legal protection. The dancer triumphed.
Stringfellow’s ‘no-strings-attached’ approach to his workers is highly relevant to all employers. Employees enjoy legal rights extending well beyond those of the self-employed, or even those in the middle-ground category of ‘workers’. A ‘worker’ enjoys the right to a minimum wage, paid holidays, the ability to ‘blow-the-whistle’ and more. An employee trumps these with additional protection in areas such as health and safety, business transfers, disciplinary action and the ‘gold-star’ rights to a redundancy payment and not to be unfairly dismissed. These valuable assets are the sting in the tail for the less switched-on employer.
Caught with his pants down, Mr Stringfellow went red-faced to the Court of Appeal. The Law Lords stripped the facts and applied the legal principles. A contract of employment requires:
The first and the third were satisfied. No right to substitute a friend and strict rules regarding her performance – from her appearance to the payment possibilities: in the garter – no touching allowed!
But the second proved trickier. There was no requirement for the dancer to perform on a set number of nights. She advised the Club of her availability and danced to Stringfellow’s tune when rostered to do so. There was a degree of mutuality of obligation. But the Court of Appeal demanded more. There was no ‘wage/work’ bargain. The economic risk was hers. A willingness to dance her tassels off did not mean the Club would pay her. No paying punter meant no payment. It would be an unusual case to find a contract of employment where the worker takes the economic risk and is paid exclusively by third parties. The dancer was not an employee after all.
Employment status is an objective matter to be determined by law not by the parties. The answer is never easy. Casual staff and consultants may be employees, particularly where they are paid for personal service and their performance is controlled to some degree. Employers wishing to avoid costly embarrassment should seek specialist legal advice.
Victoria Notman is a solicitor at Raworths LLP specialising in employment. To contact Raworths telephone 01423 566666 or visit our offices at Eton House, 89 Station Parade, Harrogate, HG1 1HF. Alternatively, you can email email@example.com