United Kingdom Employment Appeal Tribunal

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URL: http://www.bailii.org/uk/cases/UKEAT/2011/1861_10_0507.html
Cite as: [2011] UKEAT 1861_10_0507, [2012] IRLR 536, [2011] UKEAT 1861_10_507

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Appeal No. UKEATPA/1861/10/RN

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 5 July 2011

Before

HIS HONOUR JUDGE McMULLEN QC

(SITTING ALONE)

MISS N E QUASHIE APPELLANT

STRINGFELLOW RESTAURANTS LTD RESPONDENT

Transcript of Proceedings

JUDGMENT

RULE 3(10) APPLICATION - APPELLANT ONLY

APPEARANCES

For the Appellant

MS C RAYNER

(of Counsel)

Instructed by:

Bindmans LLP

275 Gray’s Inn Road

London

WC1X 8QB

HIS HONOUR JUDGE McMULLEN QC

1. This is an application under rule 3(10). HHJ Serota QC formed the opinion that there was no reasonable prospect of success. He considered the careful Judgment of Employment Judge Ms Isaacson sitting over three days and a day of reflection and considered no error. He was impressed by the similarity between this case and the guides in the Carmichael case.

2. Today a very substantial argument has been addressed to me by Ms Rayner, together with - I will use her word - an overlong Notice of Appeal and skeleton argument, which will require a bit of adjustment. It seems to me there are reasonable prospects of success in one respect, but I propose to allow the whole appeal to go forward. This is to do with the second part of the third component in the irreducible minimum.

3. The Claimant succeeded in showing that she was under the control of the Respondent and that she provided personal services as a dancer. She failed because she could not establish mutuality of obligation. That phrase means an obligation on the employer to pay for work done (or to pay but provide no work except in unusual circumstances) and the Claimant to work.

4. Ms Rayner has shown me that the finding by the Judge in paragraph 39 as to rotas indicates the following:

“Part of Ms Mustafa’s role as House Mother is to book the Dancers in for their shifts so that she can arrange rotas in advance to ensure that there are sufficient numbers of Dancers available on each night. A fixed pattern is agreed between the House Mum and the Dancer and that pattern was expected to continue to operate until the Dancer requested a change. The one requirement set out in the rules was that a Dancer must dance on a Saturday and Monday twice a month.”

5. It follows from that that there was an agreement and the agreement had minimum days of turnout - Monday: twice a month; Saturday: every Saturday - plus additional days. The nature of the word agreement used by the Judge there indicates an obligation.

6. There may be obstacles still in the pathway of the Claimant as to the relationship between the club and the House Mother, as it was she who fixed the rota, and the method of payment, but this is a very unusual case. The method of payment is unusual; the method of organising the agreed rota is unusual; and the finding by the Judge which goes with paragraph 39 as to the rotas is found in paragraph 79, which is as follows:

“The essential element of the wage/work bargain is not present in this case. When the Claimant came to dance at the Club she was obliged to follow rules and I have already found she was subject to a degree of control by the Respondent but I do not find that level of control amounted to mutual obligation. There is no contractual obligation on the Respondent to provide work for which the Claimant would be paid. The Claimant was not required to work a set number of nights per week but was required, if rostered to work, to work one Saturday and one Monday every two weeks in a month and one night a week at Angels. It is not clear from the documents before me whether the Claimant in fact complied with those requirements, as for many weeks of the period that she worked at the Respondent she worked two or less days.”

7. There is the obligation “if rostered to work” to do the work. Ms Rayner argues that as rosters are the subject of an agreement, when a roster is agreed there will be an obligation on the Claimant to turn up and she is entitled to be paid on those dates. It seems to me reasonably arguable that the Respondent is obliged to stick with the roster. That is a sufficient minimum obligation to allow her to work or to pay her, (or to ensure that she is allowed to work is probably a neutral way to put it). So, it is the obligation of the Respondent when a rota has been drawn up to allow her to do it.

8. The Claimant has established that there is sufficient in this case for it to go to a full hearing.

Post script

9. Since the hearing I have noticed that Spearmint Rhino was cited to the Employment Judge but not to me, nor Sutton cited within it. Both of these may be relevant to the appeal.

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