What Makes a Good Employment Law Story?

Nadine Quashie

There’s no question about it: take a good looking woman, preferably without her clothes, have her dancing (naked, of course), throw in some large sums of money, add a celebrity and a good soundbite from a lawyer and, hey presto, you have a story to fill the paper.  In fact, you have this story.

The case is being fought as a preliminary hearing to decide whether Ms Quashie is an employee or not.  If she is self-employed, as Stringfellows allege, then there is no jurisdiction for the ET to hear her unfair dismissal claim and she will probably have no other remedy apart from a claim for any notice monies she may be owed.  On the other hand, if she is held to be an employee then the case will go to a final hearing to decide whether she was unfairly dismissed, unless it settles in the meantime.

You might think that the issue of whether a person is an employee or not is simple, but it often isn’t.  There is no one litmus test to distinguish between an employee, a worker, or a self-employed individual.  How the person paid their tax is often a very important factor in determining their status, but it isn’t the only one.  That’s why Stringfellows barrister, Caspar Glyn of Cloisters Chambers, memorably stated “she was a complete stranger to the taxman”: not just no  PAYE there then.

Paying tax on a self-employed basis is often a very persuasive factor in pointing to a lack of an employment relationship, but it’s not the overriding consideration. Employers do sometimes set employees up as self-employed and draw up a contract of employment which states that it isn’t, and it is hard for the employee to do anything about that at least initially.  Not that many employees in the whole scheme of things seek legal advice before they join their “employer”.

One of my favourite case quotations on this subject is this one from the case of Levy McCallum Ltd v Middleton EAT [2005]

If parties agree to create a horse but instead create a camel, the fact that they intended to create a horse and even call what they have created a horse is of little assistance in determining whether it is in fact a horse

It’s almost up there with Donald Rumsfeld’s “known knowns”. You can see how you might get confused, can’t you?

One very important factor is the “mutuality of obligation” test: was the employer required to supply work and was the employee obliged to turn up and do it?  If yes to both then it is suggestive of an employment relationship. Contrast that with a plumber whom you ask to come and fix your tap: it’s a one-off job and you’re merely engaging his services for that work.  Also, the plumber can delegate his duties to someone else – e.g. his mate.  An employee can’t do that.

Ms Quashie is probably relying on another test – that of direction.  She was working at the direction of the club and that is often evidence of an employment relationship.  They told her when to dance, and supplied the customers. She alleges she had to work – dance – for free, although the club denies this.

The result will be interesting.  My money’s on the horse.

If you’re in doubt about the terms of your employment,  contact me at michaelscutt@dalelangley.co.uk for a no obligation no fee discussion.