In Stringfellow Restaurants Limited v Quashie the Employment Appeal Tribunal (EAT) overruled the Employment Tribunal and concluded that Ms Quashie, who had worked as a lap-dancer for 18 months, was an employee and so could claim unfair dismissal. Despite the fact that she was not guaranteed any pay, the EAT found that there was a contract of employment on the nights she actually worked: she was required to do the work herself and was subject to being fined under a disciplinary procedure. Stringfellow appealed to the Court of Appeal.
The Court of Appeal noted that Ms Quashie negotiated her own fees with clients and took all the economic risk. If she was not able to get any clients to pay her fees, Stringfellow did not have to pay her anything and indeed she might be out of pocket if fines imposed on her by Stringfellow exceeded the fees that she negotiated with her clients.
The Court of Appeal held that she was not an employee. One Judge said "the fact that the dancer took the economic risk is also a very powerful pointer against the contract being a contract of employment". The Employment Tribunal in its Judgment that she was not an employee felt that strong factors were that there was a self-employed agreement in place that the dancer had accepted, she paid her own tax and she did not receive sick pay or holiday pay. The Court of Appeal reminded itself that the parties cannot fix the status of a relationship between themselves, which is a matter of law but said that it is legitimate for a Court to have regard to the way in which the parties have chosen to categorise the relationship and "in a case where the position is uncertain, it can be decisive".
This case does not mean that no lap-dancer can be an employee however organisations who take the risk of engaging people on a self-employed basis in that grey status area between employee and self-employed can improve their position by making sure that they have proper and clear self-employed agreements in place.