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PostPosted: Sat May 05, 2012 8:46 am 
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http://www.bailii.org/uk/cases/UKEAT/20 ... _2604.html

Interesting case, too long to put on here, so please click the link!

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PostPosted: Sat May 05, 2012 11:17 am 
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15. The Dancers are directly responsible for the payment of the House Mother and for the DJ, hairdresser and other facilities at the Club used by the Dancers. Dancers therefore pay upfront each night a ‘tip out’ fee of £15 to the House Mother before commencing their shift. When they come into work they have to report to the House Mother. She will then enter their details onto a computer which prints out a label which is then put on to an envelope containing the heavenly money vouchers they have received, into a safe with their name and amount on the envelope. The Club then make certain deductions; including a commission fee (of 20% for sums below £300 and 25% for sums above £300) a house fee of £65 per night and any relevant fines. The fines can be for the following: £25 per hour for being off rota, £20 for being late for a shift, £10 for being late for a stage dance/song, £50 to £100 for being late for a meeting and £25 for missing a free dance.


I thought ph had it bad :lol:

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PostPosted: Sun May 06, 2012 9:57 am 
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Worker was employee owing to mutuality of obligation


Mutuality of Obligation is what convinced a judge to rule that a self-employed lap dancer was technically an employee and therefore within her rights to sue for unfair dismissal, an employment tribunal ruling shows.

Nadine Quashie, a former dancer at Stringfellows, was said by the tribunal to have satisfied the minimum requirements for a contract of employment to exist, with an element of control, personal service and, crucially, MOO.

Pointing to sufficient mutuality between the parties every night Ms Quashie worked at the club, tribunal Judge McMullen noted that she was required to turn up personally whenever she was rostered to work, and performed under the direction of management.

Stringfellows were also said to have been obliged to provide opportunities for Ms Quashie to dance, while also being obliged to exchange vouchers she had earned in sterling.

“[This was] plainly an obligation to pay her,” reflected Bindmans, the law firm which represented Ms Quashie.

Her lawyer Shah Qureshi added: “She worked under a contract over which Stringfellows had control and under which she was required to provide services for payment. There were mutual obligations that had all the hallmarks of an employment relationship”.

During her time at the club, Ms Quashie could be fined if she didn’t provide free dances or comply with her other duties, which included having to attend an unpaid weekly meeting.

All of these factors, including the regular nature of the rota, led the dancer to an “expectation of a continued working relationship.”

Bindmans added that the case is now remitted to a three-person employment tribunal to determine the question of unfair dismissal, relating to Ms Quashie’s firing from Stringfellows in December 2008.

“I’m delighted”, the 29-year-old said of the decision. “It confirms my belief that I was an employee entitled to the same basic rights as an employee in any other industry. It has been a long struggle and I look forward to my unfair dismissal claim now.”

source: http://www.contractoruk.com/

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PostPosted: Sun May 06, 2012 1:12 pm 
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I guess the relevance of this on here will be whether private hrie drivers are indeed employed. I would say that it would be a difficult case to prove and there would have to be particular circumstances such as the rota of work, which is missing in a lot of firms that operate an open shift. There would also be the need for account work which would have the exchange of paper receipts for cash in hand. There is the element of punishment in some firms that may disable a data head if a driver doesn't do a particular job or doesn't pay all their settle, but I would definately say there is MOO in so far as if a driver turns up the operator will provide work.

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PostPosted: Sun May 06, 2012 10:28 pm 
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It may be the PH driver is the employer and the firm the employee as it's the driver that pays the company.

Although I see it more as a business/contractor arrangement, the driver is the business and they contract the firm to source and provide work for them, just like all the major businesses contract call centres to handle their telephone enquiries. That's all a taxi firm is really, a call centre, with the addition of some extra advertising and paperwork.

Either way it means that it should be the drivers/owners that call the shots and not the companies saying you have to do any job, work certain shifts or any other conditions they require, nor should they be able to issue fines or take you off air if you refuse.

If they do take you off air or try and fine you two issues come to mind. Firstly the firm could be in breach of contract, you have paid a rent to be provided with work over the period of time the rent covers. If that work is not provided and the rent still taken then the company has not fulfilled its side of the contract. Secondly if a fine is issued with the threat that you will not be given any more work until it is paid then that could be considered blackmail - a very serious criminal offence ;


BLACKMAIL:
Blackmail refers to a situation that arises when a person threatens another person with some form of punishment if they do not offer some form of concessions.

To force or coerce into a particular action, statement, etc.:

Any payment extorted by intimidation.

The exertion of pressure or threats, esp unfairly, in an attempt to influence someone's actions

To exact or attempt to exact (money or anything of value) from (a person) by threats or intimidation; extort.

Blackmail may also be considered a form of extortion. Although the two are generally synonymous, extortion is the taking of personal property by threat of future harm. It is the use of threats to prevent another from engaging in a lawful occupation.


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PostPosted: Mon May 07, 2012 3:12 am 
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It may be the PH driver is the employer and the firm the employee as it's the driver that pays the company.

Although I see it more as a business/contractor arrangement, the driver is the business and they contract the firm to source and provide work for them, just like all the major businesses contract call centres to handle their telephone enquiries. That's all a taxi firm is really, a call centre, with the addition of some extra advertising and paperwork.

Either way it means that it should be the drivers/owners that call the shots and not the companies saying you have to do any job, work certain shifts or any other conditions they require, nor should they be able to issue fines or take you off air if you refuse.

If they do take you off air or try and fine you two issues come to mind. Firstly the firm could be in breach of contract, you have paid a rent to be provided with work over the period of time the rent covers. If that work is not provided and the rent still taken then the company has not fulfilled its side of the contract. Secondly if a fine is issued with the threat that you will not be given any more work until it is paid then that could be considered blackmail - a very serious criminal offence ;


You wouldn't be an operator by any chance would you. There is a world of difference in a call centre and a private hire operators office, not least the fact there is probably a % paid for each call taken. Also how often do you see advertisements for 'private hire operator company wanted for hard working private hire driver. Good rates of pay to the right applicant'

Did you read that case and decide you didn't like what the judge said so turn it on it's head for a giggle :?

The problem with operators is they do say what hours are available in many cases, they also withdraw their services for various reasons and as they have possession of the very thing the private driver needs (ie the operators license) it's difficult to see how they could be considered an employee

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PostPosted: Tue May 08, 2012 2:40 am 
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With respect Toots I didn't say firms were the employee but that they may be, and that the arrangement is more that of a contractor/contractee. The only money changing hands is from the driver/owner to the firm in exchange for the provision of work, the company makes no payment to the drivers, that comes from the customers whom the company, acting as intermediatries passes to the driver. As the company makes no payment to the driver they can't really be employers, however the drivers do pay the company and as such are more likely the employer. But as I said as the drivers are self employed then they are more a contractee paying for the services of a contractor and neither are employees of the other.

In the Stringfellows case the club were seen as employers because they made direct payments to the dancers, the customers didn't pay the dancers but the club, who in turn passed that to the dancers in exchange for vouchers. In a taxi the customer pays the driver not the firm.

In general it is the person making the payment who is the employer and the person it is made to the employee. What muddys the water is the person making the rules (of employment) tends also to be the employer, and that in the case of cabbing is usually the cab firm - not the person making the payments. And that is why there is so much confusion in our trade as to who is the actual employer, the driver or the firm ? One makes the payments but the other makes the rules.


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PostPosted: Tue May 08, 2012 6:32 am 
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sasha wrote:
With respect Toots I didn't say firms were the employee but that they may be, and that the arrangement is more that of a contractor/contractee. The only money changing hands is from the driver/owner to the firm in exchange for the provision of work, the company makes no payment to the drivers, that comes from the customers whom the company, acting as intermediatries passes to the driver. As the company makes no payment to the driver they can't really be employers, however the drivers do pay the company and as such are more likely the employer. But as I said as the drivers are self employed then they are more a contractee paying for the services of a contractor and neither are employees of the other.

In the Stringfellows case the club were seen as employers because they made direct payments to the dancers, the customers didn't pay the dancers but the club, who in turn passed that to the dancers in exchange for vouchers. In a taxi the customer pays the driver not the firm.

In general it is the person making the payment who is the employer and the person it is made to the employee. What muddys the water is the person making the rules (of employment) tends also to be the employer, and that in the case of cabbing is usually the cab firm - not the person making the payments. And that is why there is so much confusion in our trade as to who is the actual employer, the driver or the firm ? One makes the payments but the other makes the rules.



You have no account work and pay the driver either weekly or monthly?

Who is the customers contract with.....the driver or the operator? Would you object to the driver getting an operators license and accepting his own work...whilst perhaps maybe giving his phone number to some of those customers that phone you?

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PostPosted: Tue May 08, 2012 8:10 am 
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Can the driver do work for other operators?

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PostPosted: Tue May 08, 2012 9:56 am 
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I wonder what is the general opinion on the set up for the taxi firm the vehicles I drive work under. The taxi firm itself does not own a single vehicle. There are both Hacks and PH on the circuit. The vehicles are all owned by either shareholders or "members". The owners (shareholders or members) pay a "sub" to the taxi firm to have their car(s) on the circuit and for all the work generated over the datahead which of course belongs to and is provided by the taxi firm. This does include account work held in the name of the taxi firm and so "sub contracted" to the owner's car.

It is the owners that source their drivers and there is an internal rule that drivers can't switch between owners just cos they can get a better deal on rental/settle. The payment for use of the car and basis of rental/settle is between the driver and the owner, not the taxi co. The taxi co does not take any commission for the account jobs, but this in turn is reflected by the fairly high subs. Unusually it has recently been a requirement that all owner's of PH's also have their own op's license!

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PostPosted: Tue May 08, 2012 9:58 am 
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2 Jobs wrote:
Unusually it has recently been a requirement that all owner's of PH's also have their own op's license!


You appear to have answered your own question :wink:

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PostPosted: Tue May 08, 2012 10:20 am 
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2 Jobs wrote:
It is the owners that source their drivers and there is an internal rule that drivers can't switch between owners just cos they can get a better deal on rental/settle.


I'm sure preventing somebody from changing owner has to be illegal in some way or at best immoral. Also if the owners can get somebody else to do the work for them, i.e a driver then I would think they are contractors and not employees but I don't think you could say that about the drivers albeit they may be employees of the owner and not the operator. For the owners that don't have drivers can they work for other operators? In fact can the owners that do have drivers work for other operators?

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PostPosted: Tue May 08, 2012 11:48 am 
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You appear to have answered your own question


That's why I talk to myself a lot, I always get a sensible reply :badgrin:

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For the owners that don't have drivers can they work for other operators? In fact can the owners that do have drivers work for other operators?


The problem would be that the vehciles have company name stickers on the rear passenger doors, council rule. Consequently to my knowledge it doesn't happen but in theory I spose it could. The company concerend are the largest in town, about twice the number of cars than the next biggest. They hold all the best contracts so I suspect in practice it wouldn't happen. I spose a driver could take a "direct" booking, not sure how the company would view it. I have taken direct bookings for friends, with the car owners agreement.

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I'm sure preventing somebody from changing owner has to be illegal in some way or at best immoral.
I agree but it is unwritten as far as I am aware.

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PostPosted: Tue May 08, 2012 8:36 pm 
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2 Jobs wrote:
Quote:
You appear to have answered your own question


That's why I talk to myself a lot, I always get a sensible reply :badgrin:

Quote:
For the owners that don't have drivers can they work for other operators? In fact can the owners that do have drivers work for other operators?


The problem would be that the vehciles have company name stickers on the rear passenger doors, council rule. Consequently to my knowledge it doesn't happen but in theory I spose it could. The company concerend are the largest in town, about twice the number of cars than the next biggest. They hold all the best contracts so I suspect in practice it wouldn't happen. I spose a driver could take a "direct" booking, not sure how the company would view it. I have taken direct bookings for friends, with the car owners agreement.

Quote:
I'm sure preventing somebody from changing owner has to be illegal in some way or at best immoral.
I agree but it is unwritten as far as I am aware.


An awful lot of 'unwritten' which usually means unethical at best and possibly illegal in some cases. BTW if the door signs are magnetic it'd take 1 minute to swap them over albeit a bit of pain

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PostPosted: Mon Aug 06, 2012 6:42 am 
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It is illegal for employers to fine their employees. Only the police, courts, and local authorities can fine you. There's been a long-running thread about this on Pepipoo.


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