Stringfellows wins unfair dismissal appeal

Former Stringfellows lap dancer Nadine Quashie lost her claim for unfair dismissal after the Court of Appeal found in the nightclub’s favour in December.

For almost two years the case has been making waves in the tabloid press, and in legal and accounting circles because of its implications for other employment status situations, including IR35.

According to the Court of Appeal decision, [2012] EWCA Civ 1735, the case started in December 2008 when the club told Quashie she could no longer work there because it believed she had become involved with drugs on the premises.

Quashie failed in her initial claim for unfair dismissal in 2010 when an employment tribunal ruled that she had been self-employed. But on appeal, her representative John Hendy QC convinced the judge that the commission and nightly fees (and fines, where applicable) demanded by the club amounted to a contract of employment.

“On each night she attended the claimant was obliged to work as directed by the management,” noted tribunal appeal judge McMullen. Taking into account the wider picture including factors such as control and mutual obligations, he ruled Quashie was an employee.

Stringfellows appealed against that decision and argued that since the original tribunal judge had come to a justifiable finding on the basis of the facts presented, the appeal judge was not entitled to overturn the decision.

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Comments
John Stokdyk's picture

Commentary from David Kirk

John Stokdyk | | Permalink

We are indebted to Claritax Books for bringing this news to our attention in a commentary piece by David Kirk.

He notes that Elias LJ is known as an employment status specialist who was responsible in the Stephenson v Delphi Diesel Systems case (which he cited in the Quashie judgment) for advancing the controversial idea that someone who was working must have been doing so pursuant to a contract "for that duration the individual clearly undertakes to work and the employer undertakes to pay for the work done".

In the Quashie decision, the judge backtracks a bit, Kirk noted. "His thesis in Stephenson is that mutuality of obligation establishes whether there is a contract at all, and control whether that contract is one of employment. In Quashie he says: ‘Even where the work-wage relationship is established and there is substantial control, there may be other features of the relationship which will entitle a tribunal to conclude that there is no contract of employment in place even during an individual engagement.’

"This explicitly states that there may be other features to consider besides control to determine the nature of the contract, but also implies that the ‘work-wage relationship’, as he calls it, needs to be established – that is to say, it cannot be just assumed.

"It will be interesting to see how he develops this in future judgments, as the subject is certain to come up again."

Sensible decision

Ian McTernan CTA | | Permalink

Based on the facts of the case (insofar as we know them) this seems a very sensible decision about where the line is drawn between employment and self employment.

Drugs

The Rogue | | Permalink

Behind Stringfellows' initial "dismissal" were drugs allegations.  Whether she was employed or self-employed they were entitled to sever the working relationship.

KenKLM's picture

Life's too complicated

KenKLM | | Permalink

Let's go back to the good old days when an employer can employ or dismiss as he pleases based on performance given it is he/she that takes all of the financial risks . Employees to be paid for doing what you are supposed to do . Get rid of all this red tape and bureaucracy so that employers are not scared to employ and we might start moving the economy forward ? 

Drugs

grinandbearit | | Permalink

Can't agree that if she had been employed the club could dismiss her. The allegations were not proven, the above only stating that it was 'believed she had become involved with drugs on the premises'. Without proving the case she would surely have been wrongfully dismissed. 

Drugs

The Rogue | | Permalink

That did occur to me after I had posted and, of course, we know nothing about the allegations and whether there was any truth in them.

I suppose that, like in my company, such allegations against an employee would be swiftly examined by the management and, if appropriate, the employee dismissed.  If someone is self-employed perhaps the level of proof required is lower although could there be a libel claim if the dancer denies the allegations?

Constantly Confused's picture

Question

Constantly Confused | | Permalink

The Rogue wrote:

That did occur to me after I had posted and, of course, we know nothing about the allegations and whether there was any truth in them.

I suppose that, like in my company, such allegations against an employee would be swiftly examined by the management and, if appropriate, the employee dismissed.  If someone is self-employed perhaps the level of proof required is lower although could there be a libel claim if the dancer denies the allegations?

 

Surely her name is only in the press (and linked to drug allegations) because she created a court case (rightly or wrongly)?  Can you libel someone if the only reason you said 'we suspected she was on drugs' is because you were defending yourself in court?

Serious question.

Question

The Rogue | | Permalink

My libel comment was slightly tongue in cheek.  I don't know where the drugs allegation was first made but if it was at the point of initially parting company and it was made in the presence of others then is libel (or slander) possible?  As I understand it (and I am not an expert) comments do not have to be published in the press or other national media to be libel.

People far more versed in libel law than me will no doubt have a better opinion.

This case is already more complicated than it needs to be so the thought of introducing libel amused me.

Employee Disciplinary Procedures

reilloc | | Permalink

The Rogue wrote:

Behind Stringfellows' initial "dismissal" were drugs allegations.  Whether she was employed or self-employed they were entitled to sever the working relationship.


They may ultimately ge able to end their relationship but for an employee there procedures to be followed to try to establish that the disciplinary offence actually happened on the balance of probability.

carnmores's picture

@JS do keep up John!    1 thanks

carnmores | | Permalink

if you look back to Quotes of the Year

http://www.accountingweb.co.uk/article/2012-quotes-year/535511

you will see that i mentioned Quashie Quashed on 31/12/2012

i await my claritax book prize or voucher from Jessops!

 

davidwinch's picture

Libel in evidence    2 thanks

davidwinch | | Permalink

Any witness in court proceedings can never be sued for libel or slander based upon the evidence which he / she gives in court.

The public interest in protecting a witness and encouraging him / her to speak freely is deemed more powerful than the public interest in protecting the reputation of a person mentioned in court. Also having a different rule might lead to endless litigation because there could be litigation about what witnesses said in the previous round of litigation, and it would never end!

It used to be the case that NO litigation could be started about what any witness said or produced as evidence in court - but that rule has recently been modified by the Supreme Court. (The case was Jones v Kaney [2011] UKSC 13 - I have blogged about it HERE.)

So now if an expert witness who is being paid to give an expert opinion is found to be negligent he is liable in damages for losses suffered by his client as a consequence of his negligence. In effect that brings the position of an expert witness in litigation into line with that of a professional person advising his client in everyday business and professional life.

But even an expert witness is still immune from any action for libel or slander based on his / her evidence in court.

So if in evidence I say my client has smelly feet (when he does not) there is nothing he can do about that.  But if I say in evidence that his business was worthless before the fire that burned down his factory and closed the business (and my opinion on that is negligent and wrong) then the client can sue me for the additional payout which he would have received from his insurer if I had given correct evidence.

David

carnmores's picture

it was all down to that

carnmores | | Permalink

Dodgy Professor who knew ****all about probability

davidwinch's picture

Professor    1 thanks

davidwinch | | Permalink

The Professor to whom you refer is Sir Roy Meadow who acted as an expert witness (normally instructed by the prosecution) in a number of infant cot death cases in which there had been allegations of infanticide.  It is suggested that he unintentionally misled juries and courts as a result of straying outside his area of (medical) expertise and falling into a fallacy about repeated cot deaths in families and the inferences properly to be drawn from that repetition regarding the likelihood of foul play.

Undoubtedly that was damaging to the reputation of expert witnesses in court.

But it is also fair to point out that the latest change in the law follows on from a similar removal of immunity for barristers (which happened in 2001) and stems directly from a civil law case rather than a criminal case.

The Jones v Kaney case concerned the evidence of a psychologist giving an opinion on the adverse effects (including post traumatic stress disorder) suffered by a claimant in a personal injury case (he was a motor cyclist who had been injured in a road traffic accident).

It was alleged that the psychologist negligently signed an expert witness statement (to be used in the legal proceedings) in which she apparently conceded that the injured claimant was deceptive and deceitful in reporting his symptoms when, in fact, the psychologist was not actually of that opinion (but had felt under some pressure to sign).  That apparent concession undermined the claimant's case for substantial damages.

The issue in law was whether the injured claimant could sue the psychologist for negligently signing a statement with which she did not agree - or whether she was protected by witness immunity.

The Supreme Court held that the injured man was in law entitled to sue the psychologist, acting as an expert witness, for her alleged negligence to recover from her (and her PI insurers) the additional amount which he ought to have been able to recover from the insurers covering the other driver.

David

Constantly Confused's picture

See

Constantly Confused | | Permalink

I knew David would know the answer to my musing!

carnmores's picture

@David

carnmores | | Permalink

thanks i was being unusually benevolent in not naming Sir (sic) Roy it must be the mountain air - what really stuck in my craw was his abuse of statistics, and was it really unintentional or did he get carried away by his own hubris?. Panajandrums often do.