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Lap dancers and scaffolders - poles apart ?

Lap dancers and scaffolders  -  poles apart ?

Other than their mutual reliance upon sturdy poles you would think their activities were, well, "poles apart. Yet cases involving both have produced some interesting outcomes in terms of the intractable conundrum which is employment status.

One of the most exotic and assiduously followed cases of recent times came to an end in the Court of Appeal last year when, having painstakingly scrutinised the minute details of the service conditions of a Stringfellow's Nightclub lap dancer, and specifically her relationships with both her customers and the host club, their Lordships concluded that that was insufficient mutuality of obligation to found a relationship of employer and employee between the lap dancer and the club. Crucially, it was found that the club was under no obligation to pay the lap dancer, who negotiated her own payments with her customers and risked being out of pocket once the club had deducted its own fees and commissions from the payments it collected from those customers on the lap dancer's behalf before paying any balance to her. You can understand why, on a topic as dry as employee status, the facts of this case so exercised practitioners during its passage through to the Court of Appeal. [Quashie v Stringfellow Restaurants Ltd]

Mutuality of obligation is a key component of the relationship between employer and employee where, in return for remuneration, the employee agrees to provide work or skill in the performance of a service for the employer. In short, the Stringfellow's lap dancer was essentially found to have been in business on her own account. So is an employer in a better position by issuing a contract to a worker which expressly states that the worker is "in business on his/her own account ? The Employment Appeal thought not in the case of Boss Projects LLP v Bragg where a supervising scaffolder with such a provision in his contract was found not to be a worker but an employee. This was despite some features of the contract being typical of many contracts made with persons "in business on their own account, for example, having absolute discretion to subcontract the service at their own expense or provide a substitute, allowing them to undertake other work during the currency of the contract, expressly excluding them from any entitlement to sick pay or holidays, and requiring them to pay their own income tax and National Insurance contributions.

The judge found that the scaffolder could not be expected to read every page of the contract, the substitution clause was never intended to be operated, and he provided none of his own tools. Therefore, however watertight the contractual terms might appear, they did not provide a comprehensive definition of the relationship between the parties. The substance rather the form of the relationship was held to be the more reliable indicator of status .

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