Lapdancer was employee, EAT rules

A lapdancer at Stringfellows was an employee and entitled to claim unfair dismissal, the Employment Appeal Tribunal has ruled.

Stringfellows claimed Nadine Quashie was self-employed. The club also said her contract was void for illegality on grounds of her falsely representing her income in tax returns and in an application for child tax credit.

Counsel for the club argued that it was not obliged to provide work for Quashie on the nights she danced and she could 'earn no money and even make a loss'.

Stringfellows said it was 'the widespread practice in this business' for dancers to be self-employed and it was 'in the public interest' that they should be.

An employment tribunal agreed that Quashie was self-employed, but did not rule on the separate issue of whether her contract was void for illegality.

At the EAT, she argued that the club was obliged at least to provide her with the opportunity to 'dance on the stage, and, if a customer so requested, to dance in a booth or sit down with him'.

Quashie also said she was 'required to attend on the evenings for which the rota provided' and carry out the duties as directed by the manager, the 'house mother' or the resident DJ.

Ruling in Quashie v Stringfellows Restaurants [2012] UKEAT 0289_11_2604, Judge McMullen said there were plain obligations on the club, deriving from its right to control her activities.

'On the nights the claimant attended, the respondent was obliged to provide the opportunity for her to dance. It imposed a requirement to dance on the stage at various times during the night without pay.

'This provided a showcase for the customers so that she could herself earn money by personal invitation to a booth and generate the commission that the respondent would take.

'Provision of the opportunity to attract customers was very definitely a mutual benefit,' Judge McMullen said. 'The claimant would not attend, I infer, if it were permissible under the contract for the respondent to make her sit with the house mum throughout the night.

'The respondent was obliged to exchange the vouchers she earned into sterling, deducting only that which had been agreed between them and to pay the rest to her, and in respect of fines the respondent was limited by the agreement between them as to the amount and the occasions.'

Judge McMullen went on: 'On each night she attended the claimant was obliged to work as directed by the management. If she did not provide the free dances or other duties, she could be fined.

'I infer from the findings that if the claimant were directed to a customer, she could not refuse.

'It seems to me that mere attendance on the night is pursuant to a requirement that she work; that is, that she turn up and stay throughout the night shift on pain of fine or deduction.

'She takes the risk that there will be no remunerative work, but she is willing to accept that on the basis that she is available for it, and indeed she accepts the obligation to do free dances. All of those conclusions point ineluctably towards a finding that on the night the claimant was an employee.'

Judge McMullen said the employment tribunal was wrong to conclude that the claimant 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.

He upheld Quashie's claim that she was an employee. However, he allowed the club's cross-appeal on the issue of illegality. He remitted the case to a fresh three-person tribunal to determine both questions.