1. was found that the regular performance of

1.      
The claim was first heard in the Employment Tribunal
(ET).

 

2. The court of first instance (ET)
initially held that Ms Quashie was not an employee as there was no relevant
mutuality of obligation, meaning there was no contract and that there are
factors consistent with the Claimant (Ms Quashie) being self employed.

 

3. The judge sitting in the Employment
Appeal Tribunal (EAT) was His Honour Judge McMullen QC (sitting alone).

 

4. In the EAT the appellant was Ms Nadine
Quashie and the Respondent was Stringfellow Restaurants Ltd.

 

5. The EAT considered it to be relative that
Nadine Quashie attended meetings on Thursday’s because it was found that 
the regular performance of work and/or by the judge’s findings on the
claimant’s expectation of work, the relationship had enured into an employment
relationship under the one umbrella contract.

 

6. The Employment Appeal Tribunal decided
that there was a mutual obligation. The fact remains that Ms Quashie had to be
present at her place of work at the club based on the roster that was given to
her by Stringfellow, who in turn provided her the facilities to work. HH Judge
McMullen QC decided that the ET made an error when they held that there was no
contract of employment.

 

7. Lord Justice Ward, Lord Justice Elias and
Lord Justice Pitchford heard the case in the Court of Appeal.

 

8. The case was heard on the 21st of
December 2012 in the Court of Appeal.

 

9. The counsel and solicitors in the Court
of Appeal were Mr. Thomas Linden QC instructed by Messrs Davenport Lyons for
Stringfellow Restaurants Ltd and Mr. John Hendy QC and Ms Catherine Rayner
instructed by Bindmans LLP for Ms. Quashie.

 

10. The outcome the appellant was seeking in
the Court of Appeal was based on the initial issue where Stringfellow did not
provide Ms Quashie with a wage or some type of remuneration, in that she paid
them to perform at their clubs and hence was seeking that the initial ET finding
that there was no contract of employment be reinstated.

 

11. It is paramount to resolve the
difference between if a person qualifies as an employee or not because the
right to claim unfair dismissal is only granted to employees and not mere
workers.

 

12. The issue of whether there is a contract
of employment frequently arises where a person provides a service based on their
skill on a casual basis only to another. It is necessary to illustrate
continuity of a contract and any consequent breaks in said contract.

 

13. The Court of Appeal agreed with the ET analysis
regarding mutuality of obligations and that there was no establishment of an
employer/employee relationship. The Court of appeal accepted that the ET was
using the concept of ‘mutual obligations’ in two completely different ways as suggested
by Mr. Linden. However, it was agreed upon that there was never any contract in
place at all.

 

14. Based on the Ready Mixed Concrete case, The
Tribunal extracted that there are three elements which constitute a contract of
employment, one of them clearly stating that there must be a “mutuality of
obligation between the employer and employee.”

 

15. The material facts in the Court of
Appeal decision included that Stringfellow made no commitment to provide any
wage or remuneration to Ms. Quashie for any work or service she provided as
evidenced by Ms Quashie negotiating with her clients her fees and also by
taking an economic risk that on any given night she could possibly earn
nothing. Also Ms Quashie paid the club in order to perform at their venues. Stringfellow
agreed to facilitate Ms Quashie by allowing her to use their clubs to dance and
by so adding her to the club’s roster. In exchange Ms Quashie had to follow the
club’s ‘house rules.’ Also with regards to rules, Ms Quashie claimed she never
received a formal contract, however, she received a handbook, which was found
to be sufficient as it contained the house rules. As a result, she was duty-bound
to terms of the contract in the handbook, as the contract was executed in harmony
with those exact terms.

 

16. The grounds of appeal in the Court of
Appeal included that the EAT’s decision was misread and interpreted wrongly. It
was held that there was no understanding between Stringfellow and Ms Quashie
that Stringfellow had to compensate her with a wage or any remuneration for the
work she did. This is one of the conditions that must be fulfilled to constitute
a contract of employment according to the approach taken by McKenna J in the
Ready Mixed Concrete case and the EAT was not in a position to refute those
findings.  

 

17. According to the EAT held that Nadine
Quashie could bring her claim of unfair dismissal, because they supposed that Stringfellow
was required to pay Ms. Quashie for her work as a dancer at their clubs and the
fact that her earnings were derived directly from the clients was of no
consequence.

 

18. The Court of Appeal agreed with the ET
and decided for the Appellant (Stringfellow Restaurant Ltd). The concluded that
there was no employer/employee relationship and the three elements of a
contract of employment were not adequately satisfied by Ms. Quashie. As a
result the ET’s ruling that there was no contract of employment was reinstated.

 

19. This case of Cheng Yuen v Royal Hong
Kong Golf Club was useful because the ET recognized the similarity of the
cases and the Court of Appeal on examination found it to be relevant. In the
mentioned case the club provided the facilities for the caddie but it was the caddies’
responsibility to find his clients, however, the club would pay the caddie and
recoup the fees from the client. Similarly, Stringfellow did not employ the
dancers they merely provided the platform for the dancers to perform and even
though the dancers collected the fees in ‘heavenly money’ from the clients, the
club had to exchange it for actual money and give to the dancers.

 

20. The ratio decidendi of
Stringfellow Restaurants Ltd v Nadine Quashie stated that the claimant was
bound by the terms as she received a handbook from the employer which contained
the house rules and the contract was performed in that capacity. It also stated
that if an individual takes on the economic risk and is paid by a third party,
they are unlikely to be classed as working under a contract of service, as in
Ms Quashie’s case she was paid wholly by clients. Furthermore if the individual
pays their own tax and insurance they are considered self employed, as with Ms
Quashie who did so. Lastly, The Court of Appeal agreed and reinstated the judgment
of the ET that Ms. Quashie was not considered an employee of Stringfellow
Restaurant Ltd and did not hold a contract of employment, seeing that she did
not meet the requirements of a contract of employment as set out in the Ready Mixed
Concrete case.

 

21. According to the Ready Mixed Concrete case
there are three crucial elements that constitute a contract of employment, firstly
a person must be offering some sort of job for another to provide their skill,
secondly a person shall provide his skill or service for another in exchange
for a wage or some remuneration, there must be some sort of “mutuality of
obligation” and lastly the person shall in some degree subject himself to
the control of the one which he is providing the service for. This approach
establishes that the issue is not merely about control, and that the sheer
nature of the contractual provisions could lack consistency with the contract
being a contract of services.

In this case, Isabelle can be classified as
an employee. Isabelle is provided a job of waiting services by Ricardo’s Ristorante
and Bar, which ultimately satisfies the first condition. Secondly, there is “mutuality
of obligation,” Isabelle is paid the national minimum wage in addition to
tips by Ricardo’s Ristorante and Bar in exchange for her services of waiting
tables. Also the restaurant is obligated to provide Isabelle with 25 hours of
work per week and is afforded both paid holiday and sick leave. Lastly Isabelle
has subjected some control to her employer. This is supported by her appearing to
work when she is rostered to work conforming to the rota provided by Ricardo’s
Ristorante and Bar and the fact that it is compulsory for her to attend a staff
meeting every Thursday. As well as, Isabelle along with all the other
waiutresses are supervised by a senior waitress while on duty. In contrast to Ms
Quashie in the Stringfellow Restaurant Ltd v Nadine Quashie,who did not
meet the requirements as illustrated above. As such Isabelle can confidently be
classified as an employee.

 

In this scenario Daniel would not be
classified as an employee. There is no mutuality of obligation between Daniel
and Ricardo. Similar to Ms Quashie, Daniel pays Ricardo a fee of £50 for a
space at the bar. Ricardo is not obligated to supply work to Daniel, and the
fact that Daniel can turn down any work available emphasizes this point. In
addition, Ricardo has no control over Daniel and this is demonstrated by Daniel
providing his own alcohol to make cocktails to sell to customers, and the fact
that he does not follow any specific rota or receive any holiday, sick pay or
employee benefits. Also he is paid directly by the customers and can stand to
lose financially, which indicates that he takes an economic risk which is not
suggestive of an employer/employee contract. As such Daniel cannot be
classified as an employee as he has not met the requirements of a contract of
employment.

Comments are closed.