Employment Status: Stringfellows' Lapdancer

[Thanks to Ed McFarlane of Deminos HR for preparing this case summary]

Is a lap dancer an employee?

Yes, says the EAT (HHJ McMullen QC) in Quashie v Stringfellows Restaurants Limited reversing an employment tribunal's decision dismissing an Unfair Dismissal claim on the grounds that the lap dancer Claimant was not an employee.

The Claimant worked under a standard contract, the relationship was generally understood in the industry to be one of self-employment. The Claimant worked on a rota; she was entitled to work when on the rota; and was paid by the Respondent for the 'Heavenly Money' vouchers (a money substitute) that she received from clients, subject to agreed deductions.

In a fact-specific Judgment, the EAT held that on a proper construction of the employment tribunal's findings, the Claimant was an employee. The Respondent had the right to control the Claimant's activities when she was at work. Even though the Claimant worked under an 'umbrella contract' covering each separate engagement, the relationship gave rise to an expectation of continued engagement, hence there was sufficient mutuality of obligation for employment status.

The EAT remitted the case to consider the Unfair Dismissal complaint and permitted a tax-related illegality defence raised by the Respondent to be considered.

Staying Tribunal Proceedings

[Thanks to Rad Kohanzad of Atlantic Chambers for preparing this case summary]

Should a tribunal claim be stayed where the Claimant sent the Respondent a pre-action letter and draft particulars in relation to a prospective High Court claim, where the claims overlap?

No says the Court of Appeal in Halstead v Paymentshield Group.

The Claimant brought proceedings in the employment tribunal and later sent the Respondent a pre-action letter and draft particulars in respect of possible High Court action; the claims overlapped. The Respondent applied, unopposed, for the tribunal claim to be stayed, which was granted. The Claimant later changed his mind, owing to an alleged change in his financial circumstances, applied to have the stay lifted and gave an undertaking not to bring High Court proceedings in tandem with tribunal proceedings.

In allowing the appeal, the Court of Appeal held that the EAT was wrong to extend the principles in Mindimaxnox LLP v Gover to cases where proceedings had not been issued. The absence of concurrent proceedings was fundamental. The Claimant was entitled to change his mind and was not required to justify that change. Additionally, he was not obliged to give an undertaking not to bring proceedings in tandem in the High Court.

Age Discrimination

[Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary]

The Supreme Court has handed down its decision in Homer v Chief Constable of West Yorkshire Police on the scope of indirect discrimination on the ground of age.

At the age of 51 Homer began working for the Police National Legal Database. He had no degree in law, but, when he was appointed, a law degree was not a requirement of the job, provided the postholder had other qualifications and exceptional skills or experience in criminal law. Homer had those experience and skills. A new grading structure was then introduced. There were three promotion thresholds, the third and final one requiring a law degree. Because of this requirement Homer could not get to level three unless he embarked on a part time law degree alongside his day job, which would have taken 4 years. When the new requirement came in Homer was 62, and being required to retire at 65 (this was before the abolition of the default retirement age), he would not have been able to enjoy the level three promotion before he had to leave PNLD.

He brought a claim of age discrimination under the Employment Equality (Age) Regulations 2006 (see now Equality Act 2010). His claim was for indirect discrimination in that he had been subject to a provision, criterion or practice which put persons of his age group (including him) at a particular disadvantage compared with other persons.

The EAT and Court of Appeal had rejected Homer's claim. Their view was that what put Homer at a disadvantageous position was not his age, but his impending retirement. His position was therefore comparable with any other employees nearing the end of their employment, for whatever reason.

The Supreme Court (Lords Hope, Brown, Mance, Kerr and Lady Hale) disagreed with this analysis and upheld Homer's appeal. Persons in the position of Homer were disadvantaged because of a reason (retirement) that directly related to their age. It could not be correct to equate leaving because of impending retirement with other reasons for doing so. Lady Hale also points out that the form of words used in the Age Regulations (see now the EA 2010) were intended to make it easier, rather than more difficult, to establish indirect discrimination.

Although Homer was indirectly discriminated against on ground of age it was still open for the employer to justify the discriminatory requirement. That issue was remitted to the employment tribunal for consideration in the light of the Supreme Court's findings. 

Mandatory Retirement Age

[Thanks to Claire McCann of Cloisters Chambers for preparing this case summary]

The Supreme Court has held in Seldon v Clarkson Wright and Jakes (a Partnership) that the test for justifying direct age discrimination is different and narrower than the general test for justifying indirect discrimination.

The case concerned a partner from the Respondent firm of solicitors who was forced to retire when he turned 65. The Supreme Court held that the compulsory retirement age contained in the firm's deed of partnership was a directly discriminatory measure but that it was capable of justification as it was founded on legitimate social policy aims - summed up as 'inter-generational fairness' and 'dignity'. However, the case was remitted back to the employment tribunal for consideration of whether the selection of the specific age of 65 was a proportionate means of achieving those aims in the circumstances of the particular business.

The test for justifying direct age discrimination, as now clarified, is that employers must show:

• They have an aim;
• That aim is potentially legitimate in that it is capable of being a 'public interest' aim as specified in the Framework Directive (2000/78/EC) [59]. Those 'public interest' aims are distinguishable from purely individual aims particular to the business, such as cost reduction or improving competitiveness;
• The aim is also legitimate in the particular circumstances of the case [58] & [61]. A potentially legitimate aim within the Directive may not be so for the particular business concerned. This is explained by the examples given in [61]: so, avoiding the need for performance management is an aim directly connected with the 'public interest' aim relating to 'dignity' but if, in fact, the business already has sophisticated performance management procedures in place, it may not be legitimate to disapply them for one section of the workforce. This requires particular scrutiny of the aim in the context of the individual business to see if it is legitimate for that employment;

The means chosen to achieve the aim must be both appropriate and necessary. In Homer v Chief Constable of West Yorkshire Police, the SC emphasises that proportionality must be approached by considering both these aspects separately. This will involve considering whether there are other, less discriminatory, measures which would achieve the aim. This test represents a narrowing of the circumstances in which an employer can justify direct discrimination.

Supreme Court Judgments on Age Discrimination

The Supreme Court has handed down its judgments in Seldon and Homer, both dealing with different aspects of age discrimination.

A fuller summary will follow, but for now, here are the links to the press summary and the full judgments.

• Seldon: Press summary Judgment
• Homer: Press summary Judgment

Daniel Barnett 

Addendum - EAT Practice Statement - 17th April 2012

The editor of the IRLRs, Michael Rubenstein, has asked me to forward on this comment, which I am happy to do:-

"The EAT's new Practice Statement does not draw a distinction between "official" law reports and others. The distinction drawn by Mr Justice Langstaff is between "formal" reports with head notes, such as the ICRs or IRLRs, and electronic reports of cases, such as from BAILLI."

Original bulletin appears below

The President of the Employment Appeal Tribunal, Mr Justice Langstaff, has issued a Practice Statement dated 17th April 2012.

All practitioners who appear in the EAT should read the full document; the summary below is not a suitable substitute. The main points are:-

• in cases where fresh evidence arises, the preferred course is to seek a review from the Employment Tribunal before appealing to the EAT;
• appeals should not normally involve citing more than 10 authorities. Practitioners should use the official law report copies where possible, and highlight the relevant extracts in the authorities bundle.

Any practitioners who do not comply with the Practice Statement may be asked to justify their departure from it. 

EAT Practice Statement - 17th April 2012

The President of the Employment Appeal Tribunal, Mr Justice Langstaff, has issued a Practice Statement dated 17th April 2012.

All practitioners who appear in the EAT should read the full document; the summary below is not a suitable substitute. The main points are:-

• in cases where fresh evidence arises, the preferred course is to seek a review from the Employment Tribunal before appealing to the EAT;
• appeals should not normally involve citing more than 10 authorities. Practitioners should use the official law report copies where possible, and highlight the relevant extracts in the authorities bundle.

Any practitioners who do not comply with the Practice Statement may be asked to justify their departure from it. 

Discrimination: Unsuccessful Job Applicants

[Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary]

Can a worker, who claims plausibly that she met the requirements listed in a job advertisement, and who did not get the job, get disclosure of information indicating whether the employer engaged another applicant at the end of the recruitment process?

No, says the CJEU in Meister v Speech Design Carrier Systems GmbH.

Ms Meister, a Russian national, applied for the post of 'experienced software developer' with Speech Design. Her application was rejected without an interview. It was not disputed that her level of experience corresponded with the requirements of the post.

She brought discrimination claims on ground of her sex, age and ethnic origin. She also claimed that production of the successful candidate's file would show that she (Meister) was more qualified than that person.

However the CJEU held that Article 8(1) of the EU Race Equality Directive (No.2000/43), Article 10(1) of the EU Equal Treatment Framework Directive (No.2000/78) and Article 19(1) of the EU Equal Treatment Directive (No.2006/54) were not to be interpreted as entitling a person in Ms Meister's position to have access to the successful candidate's file.

On the other hand, it must be ensured that a refusal of disclosure by the employer did not compromise the objective of these Directives. Therefore it could not be ruled out that an employer's refusal to grant access to the information may be one of the factors to take into account in the context of establishing facts from which it may be presumed that there has been direct or in direct discrimination. Consideration of those factors (which, the Court added, might also include, in the present case, the fact that Meister was at least equally qualified and was not even called for interview) was a matter for the National Court.