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
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For the Appellant
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MS
C RAYNER
(of Counsel)
Instructed by:
Bindmans LLP
275 Gray’s Inn Road
London
WC1X 8QB
|
|
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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.
