{"id":380,"date":"2019-06-05T10:34:51","date_gmt":"2019-06-05T10:34:51","guid":{"rendered":""},"modified":"2019-06-07T12:46:52","modified_gmt":"2019-06-07T12:46:52","slug":"stringfellows-restaurants-v-quashie-3736","status":"publish","type":"post","link":"https:\/\/www.lawteacher.net\/free-law-essays\/employment-law\/stringfellows-restaurants-v-quashie-3736.php","title":{"rendered":"Stringfellows Restaurants Ltd v Quashie 2012 Analysis"},"content":{"rendered":"
\n

\u201cAll employees are workers but not all workers are employees\u201d<\/p>\n

Stringfellow Restaurants Ltd v Quashie [2012] EWCA Civ 1735; [2013] IRLR 99 [5] (Elias LG) <\/cite><\/p><\/blockquote>\n

Introduction <\/strong><\/p>\n

Not all workers are considered as employees, some individuals are referred to as workers. It is legally important to distinguish between the two but as proven in the Stringfellow Restaurants Ltd v Quashie, 2012 case it is not always easy to determine what category some individuals fall under. To briefly summarise Quashie brought a case of unfair dismissal to an employment tribunal<\/a>, however the case was rejected on the regards she was not an employee. Only employees with qualifying service have the right to bring unfair dismissal claims, employees are individuals that work under a contract of service or apprenticeship as stated in section 230 of the employments right act 1996 (Kerseys, 2017).<\/p>\n

The
\nContract of service is defined as the contract of employment in legal terms,
\nthe concept is usually distinguished against the contract for services; this is
\na contract where a person provides a service for example a self-employed worker
\n(Middlemiss & Downie, 2015). Those working under a contract for services
\nwill not receive same statutory rights and obligations as employees but do
\nbenefit from flexibility and lower tax rates (Carby Hall, 1983).  Mainly because of the flexible interpretation
\nin the labour market it makes it difficult to distinguish between a worker and
\nan employee (CIPD, 2015).<\/p>\n

There
\nare three common law principles that determine whether an individual is an
\nemployee or a worker (Wallace, 2013). The Tribunal and the employment appeal
\ntribunal had conflicting views on whether Quashie had fulfilled one of the main
\nprinciples. The principles are known as personal service, control and mutuality
\nof obligations. This case highlights the ambiguity and confusion about the
\nrelative status of workers or employees (Towers, 2012). Stringfellows Restaurants
\nLtd v Quashie 2012 will be explored in greater depth and in comparison to other
\ncase law and a selection of common law tests that can reveal the factors needed
\nto be present for an individual to be considered an employee rather than a
\nworker. <\/p>\n

Common Law Principles <\/strong><\/p>\n

The case regarding Ready-Mixed Concrete (South East) Ltd vs Ministry of Pensions and National Service [1968]<\/a><\/strong> developed the common law principles. This case is commonly referred to when determining the status of an individual (Sherrington, 2007).  To summarise, the drivers of the Lorries were previously employed by the firm but when they were dismissed the firm sold the Lorries to the ex-employees and re-hired them as self-employed workers. This lead to some disagreement hence the legal case as the contract contained several clauses which made it difficult to distinguish whether the drivers were actually self-employed workers or employees (Emir, 2016). Due to the drivers owning the Lorries they now had to maintain and pay all the costs attached to running the vehicle, they had greater autonomy in deciding what route to take and could provide a substitute driver when necessary and were responsible for paying their own national insurance contributions: these in practice all point to the drivers being self-employed workers. However when the case is examined further it revealed that employees still had to wear uniform and Lorries could only be used for the activities carried out by Ready Mixed Concrete (South East) Ltd, they could not carry out work for anyone else because the lorries needed to be available to firm at any point. Ready Mixed Concrete Ltd still had the element of control as the drivers were under obligation to obey orders by the firm this suggests that they are in fact employees.  The court determined that the drivers were self-employed workers predominately due to the fact they could provide a substitute diver (Emir, 2016). Therefore it is critical to consider all the main principles in isolation, before combining them together to determine whether an individual is either an employer or a worker.    <\/p>\n

Ready-Mixed Concrete Ltd vs Ministry of Pensions and National Service, 1968, judicial decision dictated that the three common law principles must be in existence for it be considered as a contract of employment (Cabrelli, 2016). Therefore each principle will be discussed in more detail throughout this essay. <\/p>\n

Personal Service <\/strong><\/p>\n

Due
\nto the substitute clause having the overriding affect in Ready Mixed Concrete
\ncase, Personal service will be discussed first. This test deliberates if the
\nindividual carried out the work did they do it personally (Middlemiss &
\nDownie, 2015). If an individual is subject to provide a suitable replacement
\nwhen they are not able to a provide service it is most often or not this
\nindividual is a worker or independent contractor (PlusHR, 2017). There have
\nbeen several cases that reflect substitution clauses, however it is important
\nto highlight that this type of clause cannot exist in a contract of employment because
\nit is not consistent (Cabrelli, 2016)<\/p>\n

The court of appeal set out the condition that an individual must perform a service personally to an employer before a contract of service can occur, as seen in the Express and Echo Publications Ltd v Tanton [1999] <\/strong>(Middlemiss, 2012). Tanton had a substitution clause in his contract which stated if he was unable or unwilling to perform his work personally, Tanton had to provide another suitable person to perform the work. Although there was a degree of control present the substitution clause overrides the control factor as it reflects a self-employed role and is inconsistent with a contract of employment (Middlemiss, 2015). The obligation of personal service must be present for a contract to be considered one of employment (Antell, 2004). <\/p>\n

However
\nthis statement is challenged, in the case of Pauley v Kenaldo Ltd [1953].<\/strong> In certain circumstances an individual
\nwill have an obligation of personal service, but will only have to do some of the
\nwork personally. In turn this contract could be held as a contract of
\nemployment. For example Pauley was a clockroom attendant who organised a
\nsubstitute at her expense to cover her day off, however this was an unusual
\noccurrence as she usually carried out the work personally (Antell, 2017). The
\nPersonal Service factor is case by case specific not one size will fit all. Although
\nit would be unusual to be accepted to delegate as an employee as long as it is
\nlimited it will not prevent someone being an employee. As proven in the Byren bros (Foamwork) Ltds v Baird [2002]<\/strong>.
\nThe delegation in this case was found not be inconsistent with the contract of
\nemployment, as the individual had to receive permission first by the employer
\nbefore delegating in circumstances where the individual cannot carry out the
\nwork personally (Vettori, 2007).<\/p>\n

However
\nas argued that substitution clause can be dangerous, as it provides the possibility
\nthat employers can deliberately place one into the contract to  contradict the employment status for workers,
\nthis was expressed in Consistent Group
\nLtd v Kalwak [2008]. <\/strong>This is when the substitution clause was used to deny
\nany obligation to provide work to employees, even though it did not reflect the
\nactual relationship (Painter & Holmes, 2012). <\/p>\n

Control<\/strong><\/p>\n

Control
\nis important factor to consider when establishing if there is an
\nemployee\/employer relationship in existence. The control test was one of the
\nearliest developments by the courts to verify the relationship status (Sargent,
\n2014). This is determined by how much control the employer has over the
\nindividual party (Emir, 2016).  As proven
\nin Narich Piry Ltd vs Payroll Tax Comr
\n[1984].<\/strong>  The employer (Narich) can
\neffectively control not only the allotted task but also the way how a task is
\nto be carried out\/performed (Gov, 2016). It was degree of control through the
\ndetailed and specific instructions that confirmed that those classed as
\nlecturers working for Narich were in fact employees<\/em>.  <\/p>\n

However,
\nelement of control can subject to different interpretations as shown in Hitchcock v Post Office [1980].<\/strong> An
\norganisation can exercise control over certain functions ran by an Individual
\nbut it would be wrong to assume that this individual is an employee. As
\nexplained in this case Hitchcock ran a sub post office in his own shop. The
\nPost Office provided him with a degree of instructions with regards to
\nfinancial control and security but did provide guidance on how to carry out
\nother functions on the managerial side, therefore resulting in Hitchcock not
\nbeing an employee of the Post Office (Emir, 2016). It is argued if an individual
\nhas greater autonomy and fewer instructions that individual is more likely to
\nbe a worker or an individual contractor (PlusHR, 2017). <\/p>\n

The control test can be inappropriate for skilled individuals and problems were highlighted in the simplicity of the test in Hillyer v Governors of St Bartholomew\u2019s Hospital [1909]. <\/strong>The court decided that nurses are not employees of the hospital within the operating theatre because instead of taking orders from the hospital authorities they took orders from the operating surgeon (Honeyball, 2016). This took into consideration because surgeons were seen as professional they were not bound to accept hospital instructions (Carby Hall, 1983).Thus the organisational test was developed to realistically examine the control factor against skilled employees. Points devised from Stevenson, Jordon and Harrison Ltd v MacDonald and Evans [1952] <\/strong>is referred to throughout case law  if an individual work is seen an integral part of the business, they are in fact an employee (Emir, 2016). As seen in Whittaker v Minister of Pensions and National Insurance [1966]. <\/strong>A Trapeze artist was carrying out her contractual duties -an integral part of business \u2013 when she fell by accident. Due to circumstances and the accident happen when Whittaker was employed under a contract of service she was declared an employee which entitled her to claim industrial injury benefits (Mocatta, 1967)<\/p>\n

Mutuality of Obligation <\/strong><\/p>\n

Mutuality
\nof obligation is the essential requirement because without it there can be no
\ncontact of any sort (Dixon, 2006). This refers to the obligation of an employer
\nto provide work and pay for it alongside the obligation of the employee to
\npersonally do the work (Antell, 2004). If an individual is carrying out the
\nwork and getting paid there is obligatory mutuality in existence.  It is legally important to distinguish the
\nrelationship between the individual and the employer, whether the individual is
\nseen as an employee or a worker. As failing to define the status of employment
\nrelationship can result in legal penalties which would be financially detrimental
\nto the firm due to fact if a worker manages to declare themselves as an employee
\nthey then have the employment rights to gain benefits that they are entitled to
\n(PLC, Employment, 2013).<\/p>\n

The key point considered in the case law tends to be whether the work is carried out on a regular uninterrupted basis or a causal basis. The issue is highlighted in the Carmichael v National Power plc [2002] <\/strong>it needs to be established whether there is still an obligation or a contract of employment during gaps in employment. Two women were employed as guides at Blyth Power Station in Northumberland on a causal as required basis. They ended up working an average of 25 hours per week but only by invitation and only when they chose to work (Middlemiss & Downie, 2015). When they brought a claim against their employer to a tribunal for not providing them with written statement of particulars. The tribunals examined the documentation and decided it was \u201cfoundered on the rock on absence mutuality\u201d (Antell, 2004). This stresses for a contract to exist there must be an ongoing mutuality of obligation between parties during periods of non-employment and just because you have series of one off contracts does not automatically equal mutuality of obligations. <\/p>\n

However
\nthis principle is challenged in Cornwall
\nCounty Council v Prater [2006]. <\/strong>Prater worked as a home tutor for the
\ncouncil between 1988 and 1998 under a series of separate engagements. The
\ncouncil were not obliged to provide Prater with work nor did she have to accept
\nengagements offered.  However once
\naccepted Prater was under an obligation to complete the work and council paid
\nher, there was a number of engagements within the ten year period. The tribunal
\nhad to decide whether this series of engagement made Prater continuously
\nemployed by the council. The tribunal found that was the case and she was
\nworking under a contact of employments for each engagement and when out of work
\nshe was covered by the temporary cessation of work (Section 212 (3) Employments
\nRights Act, 1996) this resulted in there being an ongoing mutuality as this period
\nstill counted as continuous employment (Nixon, 2006). This temporary cessation
\nwas not available to workers in Carmichael case stressing the difference. <\/p>\n

Applying Principles to the
\nCase; Stringfellow Restaurants Ltds v Quashie, 2012. <\/strong><\/p>\n

When
\napplying these principles to the Stringfellow
\nRestaurants Ltd v Quashie [2012]<\/strong> case showed the different interpretations
\nof mutuality of obligations between the tribunal and Employment Appeal Tribunal
\n(EAT) (Wallace, 2013). <\/p>\n

Tribunal
\ndeliberated the issues of personal service, control and mutuality of
\nobligations and decided that Miss Quashie was not an employee. This is due to
\ninsufficient mutuality of obligation in the employment relationships (PLC
\nEmployment, 2013). Points considered were that Stringfellow was under no
\nobligation to pay Quashie during periods when she was not dancing at the club
\nand she could work anywhere else if she wanted to (Wallace, 2013). This meant
\nshe was not covered by continuous employment clause that Prater was. This also
\ncontributes to the fact even if she was considered as an employee she did not
\nhave the sufficient entitlement period of two years to even claim unfair
\ndismissal, as Quashie only worked over 18month period (Wallace,
\n2013). Stringfellow were not obliged to pay Quashie anything; they just allowed
\nher to dance in the club Quashie made her earnings through the customers, so
\nwith work to get paid element not present she was declared not as an employee
\n(Kerseys, 2017). Hence providing justification to the tribunal for not allowing
\nthe unfair dismissal claim to proceed. <\/p>\n

However
\nthe tribunal did not consider the level of control that Stringfellows had over
\nMiss Quashie that qualifies as mutuality of obligations (PLC Employment, 2013).
\nThis is how EAT reasoned their case to support Quashies appeal. EAT argued that
\nmutuality of obligations did exist when Quashie worked at Stringfellows as she
\nwas rostered on the rota and they controlled her activities to a certain
\nextent, there was several rules that Quashie must abide e.g. dancing on the
\nstages at various time for no pay, it was during the private dances that should
\nshe was earn money but Stringfellows took a commission of this. In doing so
\nthere was a mutual benefit for both parties involved (PLC Employment, 2013). EAT
\nsupported the appeal because they articulated that all three common law
\nprinciples were in existence. <\/p>\n

The
\nCourt of Appeal upheld the original tribunal\u2019s decision, as when further
\nexamined factors favoured more towards Quashie being a self-employed worker.
\nAlthough it was acknowledged that mutual obligations were in existence but only
\nduring the times Quashie was physically working. It was argued that
\nStringfellows were under no obligation to pay Quashie due to the setup of
\npayment. There was a surcharge of commission because Stringfellows provided
\nQuashie with opportunity to dance for clients, they did not employ Quashie to
\ndance which would have resulted in an obligation to pay (PLC Employment, 2013).
\nThe deciding factor was that Quashie put herself in this position of not
\ngetting paid, it was the economic risk that the courts declared as \u201cpowerful
\npointer\u201d that opposes the nature of a contract of employment (Wallace, 2013). Furthermore
\nQuashie was responsible for paying her own tax which suggests that Quashie
\naccepted that she was a self-employed worker (PLC Employment, 2013).<\/p>\n

To
\nconclude the Quashie case is a prime example to show how differing
\ninterpretations of the three common law principles can result in contradictory judicial
\ndecisions. All three principles must be present for an individual to be
\nconsidered as an employee. Although there is confusion and ambiguity with each
\nprinciple as expressed in the cases above, however each principle should be
\nconsidered on a case by case basis. It is more likely or not if an individual
\nis given detailed and specific instructions, carries out the work personally and
\nis not responsible for deducting tax and national insurance that the individual
\nis an employee. Employees benefit from statutory rights and benefits, also
\nemployers have a duty of care towards that employee. This therefore puts the
\nemployee in a better positions than workers especially in regards to unfair
\ndismissal claims as proven in Quashie case. <\/p>\n

References <\/h2>\n