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The Employment Appeal Tribunal has ruled that a lap dancer described as being self-employed and working intermittently was an employee.

This case concerned a lap dancer who worked under various contractual documents several of which she had not seen. The relationship between her and the lap dancing club was generally understood in the industry to be one of self-employment. She was required to work two Mondays and two Sundays per month as directed by a rota and was required to attend weekly meetings. She was paid by the club by way of ‘Heavenly Money’ vouchers (a money substitute) that she received from clients and redeemed from the Club subject to agreed deductions. She could not take extended holiday and, if she was absent for more than a month, she had to re-audition.

After being dismissed by the club for misconduct she presented a claim for unfair dismissal. In order to succeed in that claim it was necessary for her to establish that she was an ‘employee’ of the Club and had been continuously employed by them for at least a year.

The Employment Appeal Tribunal, taking into account the specific facts of the case held that she was an employee. This needed (1) a “money’s worth for work’s worth” bargain, (2) control by the “employer” and (3) the requirement for her to do the work personally.

It was enough for (1) that she had to attend the Club on the rostered days in exchange for the opportunity of doing work for which remuneration would be available. It did not matter that she was not guaranteed payment or that she was paid indirectly through vouchers from customers. The Appeal Tribunal said that it could be enough for an employment contract that the employee agreed to work to gain experience or to enhance her reputation or for accommodation or payment of tuition fees to a university.

The requirements of control and personal service were found satisfied.

The Employment Appeal Tribunal also decided that the employment contract continued between engagements. This was because the dancer had to turn up for the weekly meetings and was subject to sanctions if she did not. She was also expected to attend for the Monday and Saturday dancing engagements listed for her twice a month.

For periods in between of less than a week, legislation provided for continuity of employment. For her comparatively few longer absences of two to six weeks, the Appeal Tribunal decided on the facts that there was an umbrella contract and her employment status continued while she was away.

The Employment Appeal Tribunal remitted the case to the employment tribunal to consider her claim for unfair dismissal and a tax-related illegality defence raised by the club.

Reference: Quashie v Stringfellows Restaurants Ltd

Acas has published guidance for employers with regards to the extra bank holiday in June for the Queen’s diamond jubilee.

To mark the Queen’s Diamond Jubilee there will be an extra bank holiday on Tuesday 5 June. The last bank holiday in May has also been moved to Monday 4 June and in addition most schools have moved their half-term holiday to that week.

Acas predicts that employers may find themselves having to juggle extra leave requests and recommends that employers plan ahead to avoid last minute leave request clashes or short-term absences. It is worth noting that, an employer has the right to refuse a request for statutory minimum leave under the Working Time Regulations, as long as it gives notice which is at least as long as the holiday requested.

Acas stresses the importance of being as fair and consistent as possible by having a policy on how to manage time off and leave requests so that employees can join in the celebrations and employers can maintain morale at work.

Employers should also avoid discriminating against their staff when prioritising requests for time off. A holiday policy that gives priority to parents with young children so that they can spend the half-term holiday with them, for example, could discriminate against other staff on grounds of their age or sexual orientation. However, employers should not overlook entitlements to parental leave and time off for dependents.

Acas has produced the following specific guidance:

• There is no statutory right to bank/ public holidays, so the announcement of an extra bank holiday does not increase any entitlement to holiday under the Working Time Regulations.

• Whether an employee will benefit from the additional bank holiday will depend on the wording of their contract. For example, a contract which entitles a worker to, 20 days annual leave in addition to all statutory, bank and public holidays, would potentially give the worker an extra day’s paid holiday. But if public holidays are listed by name, in a contract, a worker may not be automatically entitled to the extra public holiday.

• There is no legal right to be paid any extra for working a bank holiday. This will depend on the terms of the employment contract.

Here is the ACAS guidance.

The High Court has ruled that it is for an employer to show that a former employee has solicited former clients in breach of a non-solicitation clause.

The claimant company, in this case, took over the business of another company. Following the takeover a number of the employees left and joined a rival business, and in due course a large number of the company’s clients followed them. This led to the claimant trying to enforce non-solicitation clauses contained in the employees’ contracts of employment.

The Court, in giving judgment, said that a non solicitation clause means that: “ex-employees must not directly or indirectly request, persuade or encourage clients of their former employer to transfer their business to their new employer”. The question the Court had to decide was whether the company was able to demonstrate that one or more of the employees had in fact asked, persuaded or encouraged the clients to move with them.

There was no first hand evidence showing that the employees had requested, persuaded or encouraged the clients to follow them. The Court said that fact that a large number of clients had tried to follow the employees did not in itself prove that they had been solicited. This, the Court said, could simply have been out of a sense of loyalty to the employees. In fact the Court found that the new employer had taken considerable care to ensure the employees recognised their obligations under their restrictive covenants and complied with them.

Accordingly, the Court held that there was insufficient evidence to show breach of the non-solicitation clauses. It did not follow that the move of a large number of clients could never show breach but it would be up to the employer to prove the solicitation. In this case they were not able to do so in spite of cross-examining their former clients with all the awkwardness this involved.

Case reference: Towry EJ Ltd v Barry Bennett and others

Employers should be wary of bringing claims for breach of non-solicitation clauses unless there is clear evidence that solicitation has taken place. Non-dealing restrictions may be easier to prove.

The Supreme Court has ruled that employees who work abroad can bring a claim for unfair dismissal in an employment tribunal if they can show a strong enough connection between their employment and Great Britain.

As a general rule an employee who works abroad is not able to bring a claim for unfair dismissal here. Previously it has been held that three categories of employees can nevertheless bring a claim for unfair dismissal in Great Britain. Those are:

• employees working in Great Britain;
• peripatetic employees who are ‘based’ in Great Britain; and
• in some exceptional cases, expatriate employees.

The Supreme Court has now held that an employee who does not fall within one of those categories may still be able to bring a claim for unfair dismissal. The Supreme Court said that the starting point in such cases is that the employment relationship must have a stronger connection with Great Britain than with the foreign country where the employee works.

As a general rule, it said, the place of employment is decisive, but that is not an absolute rule. The Court said it will be necessary to look at the facts of each case to decide whether the connection with GB is strong enough to say that the legislature must have intended to give the employee the right to claim unfair dismissal under British law. The Supreme Court went on to say that cases involving employees who not only work but also live outside Great Britain require an especially strong connection with Great Britain and British employment law before an exception can be made for them.

The employee in this case did not fall within one of the three previous decided categories. He worked in Libya for a company based in Scotland on a rotational basis of 28 days in Libya followed by 28 days at home in England. He was not, therefore, truly expatriate. He was paid travel expenses for travelling to and from his home in Lancashire to Libya, had his salary paid in Sterling to a UK bank account and paid income tax and national insurance on the PAYE basis. On being assigned to Libya he was assured that UK employment law would apply to his contract, the documentation he received reflected this and his dismissal was handled by the company’s human resources department in Aberdeen. The justices in the Supreme Court unanimously agreed that the facts of his case established a sufficiently close connection with Great Britain.

Case reference: Ravat v Halliburton Manufacturing and Services Ltd.

The qualifying period for unfair dismissal claims is expected to be extended from one year to two years from 6 April 2012, but not retrospectively.

In November 2011 the Government announced its intention to extend the qualifying period for unfair dismissal claims to two years from 6 April 2012. Note that we are still waiting for a draft of the legislation required to bring about that change to be published .

In the meantime, however, it has been reported that the increase in the qualifying period is only intended to apply to those starting new employment on or after 6 April 2012 and will not be applied retrospectively to employees who started work before that date. Those who started work on or before 5 April 2012 would still only require one year’s service to qualify for unfair dismissal rights.

The proposed legislation required to extend the qualifying period is expected to be published shortly and will then be subject to Parliamentary procedure.

*The proposed changes do not impact on ‘automatic unfair dismissal’ claims.

The EAT has considered the definition of disability in giving judgment in a recent case.

As a result of an accident at home, the employee in this case was left suffering from concussion and went off sick. Five months after the accident his GP’s view was that he would make a full recovery and he expected some improvement within the following few months. His GP also hoped that there would be no need for any adjustments on his return to work.

The prognosis was, therefore, that he would fully recover within less than 12 months of the accident. The GP set out his prognosis in a medical report in which he also stated that the employee was disabled. However, it was apparent that this view was based on the nature of the employee’s symptoms as of the date of the report rather than based on the likely position over the ensuring 12 month period. Shortly after the date of the initial medical report the employee was dismissed.

As it happened the employee’s recovery was not as speedy as had been anticipated and 11 months after the accident his GP still considered him to be disabled. He brought a claim for disability discrimination, arguing that he was disabled at the time of his dismissal and that he had been unlawfully discriminated against by reason of his disability. An Employment Tribunal had earlier ruled that he was disabled at the time of dismissal and the employer appealed. On appeal, the Employment Appeal Tribunal said that the earlier tribunal had been wrong to conclude that he was disabled as it had failed to apply the legal test set out in the Disability Discrimination Act and to apply it as at the date of the dismissal.

The Disability Discrimination Act has been superseded by the Equality Act. However, the test remains the same, namely a person is disabled if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities. An impairment is regarded as being substantial if it has lasted or is likely to last at least 12 months.

The Employment Appeal Tribunal said that the question for the tribunal was whether the employee had established that he was disabled at the time when the alleged discrimination took place, i.e. at the time of his dismissal. It was, therefore, necessary for him to demonstrate that at the time of his dismissal the symptoms he was suffering from were as such as to have a substantial adverse effect on his day-to-day activities and that the likelihood was that they would last at that level for at least 12 months from the date of the accident.

The Employment Appeal Tribunal said that even if he was experiencing a substantial adverse effect on his day-to-day activities at the time of dismissal the GP’s view was that was not going to persist for very much longer and was certainly not going to persist for 12 months or more. Accordingly, it ruled that the employee was not a disabled person when he was dismissed.

The Employment Appeal Tribunal also said that it was for the employee to show that he was disabled and that the tribunal had been wrong to criticise the employer for not making further enquiries of the GP.

Case reference: S G Baker Ltd v Mr Garry Haggart.

Employers should bear in mind that GPs are not always aware of the legal definition of disability and even where they are it will ultimately be for a tribunal, not a GP, to decide whether a person is disabled or not. For this reason legal advice should be obtained where there is doubt as to whether a person is disabled.

A Polish female doctor who was subjected to discrimination on grounds of her sex and race has been awarded just under £4.5 million in compensation.

The tribunal hearing the claim found that she had been subjected to a concerted plan of action designed to end her employment while she was on maternity leave. It heard evidence of unjustified complaints about her, repeated references to her Polish origin, questions about her competency because she trained in Poland, ‘a lengthy and wholly unauthorised period of suspension’, and a ‘bogus’ disciplinary procedure which resulted in her being dismissed ‘for no good or justifiable reason’. The tribunal said that it had been ‘positively outraged’ at the way in which the employer behaved.

Medical evidence showed that she had suffered ‘chronic and disabling’ post-traumatic stress disorder, depression and anxiety, which had led to an ‘enduring personality change’ The tribunal took the view that as a consequence she will never return to work as a doctor and, therefore, took the exceptional approach of awarding compensation for loss of earnings right up until retirement.

The figure awarded is thought to be the largest award in a UK discrimination case, where awards are unlimited. The Trust and three senior staff members were held jointly and severally liable to pay the compensation.