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When is an employee not an 'employee'?

One of the major concerns that employers have are the rights that people who ‘work’ for them have when they are no longer required, especially with regard to possible redundancy rights and recourse to take them to an Employment Tribunal.

An example of how precarious defining who is an employee has been shown by an Employment Appeals Tribunal (EAT) who on Friday (27th April) ruled that a lapdancer can take club to court over her dismissal

Granted that a lap dancing club, in this case, Stringfellows, may not be the typical work environment, the ruling goes to the heart of the difficulty in determining what leads to someone being an employer/worker rather than someone who is for example self-employed.

In the case of Nadine Quashie, who was a dancer at the club and later dismissed, her legal team successfully argued on appeal that she was in fact an employee of the dancing club rather than being self employed, quashing the decision of an earlier Employment Tribunal that had ruled that she did not have such employment rights.

Such cases and judgement often focus not on whether a person is told whether they are employees of the company which can be seen as merely a ‘label’, but more on how they are actually treated in the workplace. In this particular case, it was reported that Ms Quashie had to work rostered hours, had to comply with a specific dress code and it was claimed, have to be prepared to dance with clients at a given time.

This may have influenced the thinking that this was suggestive of a relationship whereby the company was controlling what the individual needed to do which is more akin to an employer/employee relationship than that of a company and contractor- self employed or otherwise. The EAT did not comment on the merits of the actual claim of unfair dismissal itself, instead it referred the case back to the original Employment Tribunal.

For companies and organisations, this and similar cases should bring home the need to be acutely aware that how they treat someone working for them may determine their employment status as much as what is said in an appointment letter or contract. In short- if you treat someone as an employee (control their work, demand that they dress a certain way etc) even though you call them self employed, then it is quite likely that in legal terms, they are in fact employees, with all the rights that go with that status.