Quashie, a former accountancy student, lost her unfair dismissal case at an employment tribunal in late 2010, which found that she was self-employed. She appealed this decision, but this was accompanied by a cross-appeal from Stringfellows alleging that any notional contract was illegal because she had made false claims to HMRC on her tax return and child benefit claim forms. Quashie argued at the original tribunal that dancers were required to give up 25% in commission, with an additional £85 deducted for nightly fees and further fines for non- attendance or lateness. Her representative John Hendy QC convinced the tribunal appeal judge McMullen that these factors amounted to a contract of employment ( Quashie v Stringfellows [2012] UKEAT 0289_11_2604). The judge ruled that when factors such as control and mutual obligations were considered, Quashie was an employee on the nights she danced at the club: “On each night she attended the claimant was obliged to work as directed by the management. “If she did not provide the free dances or other duties, she could be fined. I infer from the findings that if the claimant were directed to a customer, she could not refuse. It seems to me that mere attendance on the night is pursuant to a requirement that she work; that is, that she turn up and stay throughout the night shift on pain of fine or deduction. She takes the risk that there will be no remunerative work, but she is willing to accept that on the basis that she is available for it, and indeed she accepts the obligation to do free dances. All of those conclusions point ineluctably towards a finding that on the night the claimant was an employee.” According to the judgement, Quashie was working under an umbrella contract with Stringfellows that would have given her a year’s continuous employment with the club during 2007-8. Having set aside the initial tribunal decision, the judge then had to consider the cross-appeal from Stringfellows, which was based on false representations for expenses she made to HMRC while under the impression that she was self-employed. In his decision on her appeal, Judge McMullen wondered how a person partly trained at university in accounts and law came might come up with such figures and noted that they required more careful analysis. “It is not for me but for an employment tribunal to determine this matter,” the judge wrote. So, Quashie’s appeal against the ruling that she was self-employed was successful, and will have a chance to put her claim for unfair dismissal to a new tribunal. But Stringfellows also won its cross-appeal, so the next hearing will proceed on the footing that its representations to HMRC could render the contract illegal in its performance. But it was not illegal at the outset, the judge ruled.
Click here to read the full story
VICARIOUS EMPLOYER LIABILITY: DID SAINSBURY’S FAILURE TO DEAL WITH A GRIEVANCE LEAD TO MURDER?
23 May 2012
Last month (April 2012), the Scottish civil courts refused to dismiss a claim seeking to hold Sainsbury’s plc liable for the death of a former employee.
HR Magazine reports:
The family of murdered Roman Romasov, who was a part-time shelf-stacker at Sainsbury’s in Aberdeen, believe the company’s failure to deal with a harassment claim contributed to his death and are seeking £500,000 in compensation.
CIPP Policy News Journal
12/04/2013, Page 43 of 362
Made with FlippingBook - Online magazine maker