‘Self-employed’ can be employees

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

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Planning for the Queen’s Diamond Jubilee

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.

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Should snow stop pay?

If your business has stayed open despite the snow then it  is your employees’ responsibility to get to work. If they don’t turn in for work due to the snow (and therefore don’t provide work in return for pay) then, unless it says differently in their contract of employment you don’t have to pay them. However, this won’t create much goodwill among your workforce so it may be better to pay the price and support them now and in turn they will  return the favour when you need one (hopefully!)  P.S. For those cash rich employers out there who think I must be off my rocker even suggesting the idea of not paying employees in such conditions, spare a thought for the cash strapped businesses who are dealing with a catastrophic drop in orders as well as absentee employees!

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