Quashie v Stringfellow Restaurants Ltd (Unfair Dismissal)

For the purposes of establishing worker status, mutuality of obligation may arise from an agreed rota. Once work dates have been agreed, the employer may be obliged to allow the individual to work those dates, or to pay if work is not provided, while the individual is obliged to attend. The absence of a general obligation to provide work each week does not necessarily defeat mutuality where a specific minimum commitment is established. The unusual method of payment or rota organisation may create issues for determination at a full hearing, but does not itself prevent an arguable finding of mutual obligation.

The claimant appealed against an Employment Tribunal decision concerning her employment status and unfair dismissal claim. The Employment Judge found that she was subject to the respondent’s control and provided personal services as a dancer, but held that there was no mutuality of obligation and therefore no contractual wage-work bargain.

On a rule 3(10) application, the Employment Appeal Tribunal considered whether the proposed appeal had a reasonable prospect of success. The central issue was whether the agreed arrangements for booking dancers and preparing rotas could establish a sufficient obligation on both parties.

1. Application granted. The appeal was permitted to proceed because there was a reasonable prospect of success on the second part of the third component of the irreducible minimum, namely mutuality of obligation.
2. Mutuality requires an obligation on the employer to pay for work done, or to provide work except in unusual circumstances, and an obligation on the individual to perform the work.
3. The Employment Tribunal had found that the House Mother and dancer agreed a fixed pattern of shifts, expected to continue until changed by the dancer. The rules required attendance on specified Saturdays and Mondays, together with additional rota days.
4. Those findings arguably established an agreement giving rise to minimum obligations. Once a rota was agreed, the respondent might be obliged to adhere to it by allowing the claimant to work the agreed dates, or by paying her if it did not do so. The claimant would correspondingly be obliged to attend.
5. The unusual payment arrangements, the role of the House Mother in organising the rota, and uncertainty about compliance remained matters for the full hearing. They did not justify refusing permission at the rule 3(10) stage.

• Employment Appeal Tribunal: On 5 July 2011, the rule 3(10) application was allowed and the appeal was permitted to proceed on the issue of mutuality of obligation.
• Employment Tribunal: Employment Judge Isaacson, after a three-day hearing and a day of reflection, found control and personal service but rejected the existence of mutuality of obligation.