SUMMARY: Statistics recently compiled suggest that claims for unfair dismissal have soared by 44% over a three month period as employees rush to file their claims ahead of new rules coming into force this summer. Continue reading
The Court of Appeal has confirmed that although OFCOM had fairly dismissed Mr Leach “for some other substantial reason” (SOSR) and in particular, a breakdown of trust and confidence, this reason should not be used arbitrarily when in reality, the reason for dismissal is something else.
Leach v The Office of Communications (OFCOM)
The Court of Appeal has confirmed that although OFCOM had fairly dismissed Mr Leach “for some other substantial reason” (SOSR) and in particular, a breakdown of trust and confidence, this reason should not be used arbitrarily when in reality, the reason for dismissal is something else. Continue reading
In order to reduce overheads the employer needed to reduce the headcount of its field service engineers, of which the Claimant was one, from 11 to 10. In order to make its selection the employer relied upon detailed redundancy selection criteria to include disciplinary records; performance and flexibility; skills and ability; and competency in the role. Continue reading
A big thank you to all sixty companies that attended our Mock Employment Tribunal at the Hilton Hotel yesterday, especially given the glorious sunshine. We would also like to thank you for all of the fantastic feedback that we received following the event, a sample of which ranged from…
“Realisation of detailed documents required before considering an Employment Tribunal” Les Stringer, The White Company Limited
“Excellent, easily understood – explained well and language used understood. Highlighted importance of following policies and procedures and what these policies and procedures state” Phillipa Villa, Polam School, Bedford – Cognita Schools
“Excellent, good value, our clients would like to see more of these” Hellie Baxter, ACS Recruitment
“Very interesting, eye opening, thoroughly enjoyable” Hayley Swann, Opus Energy Ltd
We hope that you can all join us for our next breakfast seminar on Thursday 5 July 2012, How to manage Redundancies Effectively. Please contact us for more details, email@example.com
The employment status of an individual is important for a number of reasons. From an employment law perspective, certain legal rights only apply if an individual is an employee. For example, rights on termination of employment such as the right not to be unfairly dismissed and the protection of the ACAS Code of Practice on Disciplinary and Grievance Procedures.
Whether an individual is an employee is determined by consideration of a number of factors including:
- mutuality of obligation; and
- the “employer’s” control over the employee.
When deciding whether an individual is an employee, the actual relationship will be looked at as well as the terms of any written agreement.
In the case of Quashie v Stringfellows Restaurants Ltd, the Employment Appeal Tribunal (EAT) considered the employment status of a lapdancer. Miss Quashie had claimed that she had been unfairly dismissed when Stringfellows terminated her employment for drug taking/dealing. She would only be able to have her claim heard for unfair dismissal if she was held to be an employee.
The Employment Tribunal decided on the evidence that Miss Quashie was not an employee. This decision was overturned by the EAT on the basis that there was mutuality of obligation between Miss Quashie and Stringfellows. In particular:
- Miss Quashie had to perform at the direction of Stringfellow’s management;
- Stringfellows had to provide the opportunity for Miss Quashie to dance;
- Stringfellows imposed a requirement to dance on the stage at various times during the night without pay;
- Stringfellows was also obliged to exchange the vouchers she earned into sterling, deducting only that which had been agreed between them;
- Miss Quashie would be fined and money deducted from her pay if for example, she did not turn up to work; and
- There was no scope for her to send a friend to do the work for her.
In summary, the provision of the opportunity to attract customers was very definitely a mutual benefit.
The EAT went on to find that in addition to there being mutuality of obligation and as such, employment status on the nights that Miss Quashie worked, this mutuality of obligation also extended between the periods that she did not work. This meant that she had accrued one year’s service for the purpose of bringing a claim for unfair dismissal. The case has been returned to an Employment Tribunal to now decide if she has been unfairly dismissed.
This case highlights once again the importance of taking into consideration all of the surrounding circumstances when determining employment status. Employers should be wary of what the actual status of their workers is given the legal and other associated responsibilities that an employer has where an employment relationship is held to exist
If you would like any further advice on matters concerning employment status, please contact Rachael Jessop using the contact information below.
Rachael Jessop, Solicitor
+ 44 (0) 1604 871143
This update is for general guidance only and does not constitute definitive advice.