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21 December 2012
Court of Appeal
Ward, Elias and Pitchford LJJ
A worker at a night club, who negotiated her own fees with clients, rather than receiving a salary from the club owner, was not an employee for the purposes of the employment protection legislation.
A lap dancer at a night club was required to attend work on set days and had to book holidays in advance. She had to pay various fees to the club and in some circumstances fines could be imposed (for example, for turning up late). These were taken out of the payments made by clients, using vouchers, to the dancer. The dancers negotiated the amounts of the payments. The club's ‘house rules' stated that dancers were independent contractors and were responsible for their own tax and national insurance. Dancers had to comply with the house rules. The club was not obliged to provide work, but did provide the opportunity for dancers to dance for clients in return for payment by those clients.
The Court of Appeal applied the test in Ready Mixed Concrete v Minister of Pensions, ie (paraphrasing):
(1) employee agrees to work in return for a wage
(2) employee is subject to the employer's control
(3) the other provisions of the contract are consistent with employment.
Here the key ingredient that was missing was that the club was under no obligation to pay the dancer anything. Therefore, the first of the Ready Mixed Concrete conditions was not satisfied so she was not an employee.
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