Lap Dancer Wrongful Dismissal
Stringfellow‘s lap dancer Nadine Quashie said that they wrongfully dismissed her and so sought redress.
First of all a tribunal ruled that she was self-employed, then an appeals tribunal said she was not self-employed.
And now the appeal of the appeal said she actually was self-employed and the first appeal tribunal was wrong to overrule the first one anyway.
The judge put forward the main tests to see if it was a contract of service (employee) or a contract for services (self-employed).
Tests of Self Employment
His tests were:-
1. Control – Was Nadine in control of her work and how she performed it or were Stringfellows in control?
2. Part of the business – How much was she integrated into the business? Was she integral to the business or was she peripheral to it?
3. Was she an entrepreneur running her own business or was she effectively an employee?
4. Was there Mutuality of Obligation where the company had to provide work, Nadine had to do it and the company had to pay her regularly for that work?
IR35 Pointer
According to the judge ‘The fact that the dancer took the economic risk is also a very powerful pointer against the contract being a contract of employment. Indeed, it is the basis of the economic reality test,’
He also took into account the fact that Stringfellows and Nadine had intended her to have a self-employed status at the start of the relationship.
Under the terms of the original contract she accepted that she was self employed and she operated on that basis.
So she was not entitled to holiday pay or sick pay and she didn‘t get it.
As a lap dancer, she was also responsible for her own tax.
Mutuality of Obligation
He said that there was Mutuality of Obligation but that was outweighed by other issues.
The judge said ‘In so far as the EAT was saying that the result would be the same even if the employer was merely providing the dancer with an opportunity to present her skills. Thats is essentially what the tribunal did find. I respectfully disagree.
‘Those mutual obligations would constitute a contract. However, they certainly would not compel the conclusion that it was a contract of employment.
‘For these reasons I would uphold the appeal.’
That‘s pretty good news for IT Contractors in respect of IR35.
That’s even though Nadine tried to be an employee the judge said she wasn‘t.
Good News for IT Contractors
So, the good news for IT Contractors is as follows:-
1. The judge, therefore, said that as Nadine took the economic risk that pointed to her being freelance.
2. He also said that although there was Mutuality of Obligation which showed that there was a contract he said that it was far from clear that his was a contract of service.
3. The fact that she didn‘t get holiday pay or sick pay pointed to her being self-employed.
4. The intention of the two parties that she would be self employed pointed to her being a genuine freelancer.
5. That she was responsible for paying her own tax was a pointer to her being freelance.
So it looks like Nadine the lap dancer has done IT Contractors a lot of favours here.
