Lapdancing, Exploitation and Employment Law

Earlier this week, the Guardian interviewed a former lapdancer who recently published a book of tales from the stripping world. What she found was alarming, with a culture of women masturbating customers and ignoring no-touch policies to pay house fees, while managers and security turned a blind eye to gropes, insults and threats.  In an industry where verbal abuse and unwanted touching are rife, one sex-worker describes the attitudes of men who emerged from lapdancing clubs, fully bought into the objectification that is encouraged, demanding group sex and desiring to show off to their friends.  A former lapdancer herself,  Danns talks about not only the commodification the industry engenders, but also the racism that is tolerated and the female submission demanded.  She reflects heavily on her own experiences and those that she interviewed, documenting the psychological damage and the drink and drugs that dancers took to enable them to continue to work.

It should be noted that she actively chose only to interview those who had left the industry, rather than those still in it, on duty of care basis; that lapdancing was psychologically damaging and that a defence mechanism that strippers used to protect their mental health was not to reflect on the reality of the industry.  It is thus interesting to note the reaction of one current dancer to the book.

In 2004 Glasgow City Council, prompted by anecdotal evidence of abuse and harassment undertook a major study of the lapdancing industry.  It found that

  • Lapdancing clubs are part of the sex industry
  • Lapdancing is increasingly normalised
  • Activities in the clubs are detrimental to gender equality
  • Prostitution occurs within some clubs
  • Current licencing regimes are inadequate
  • Working conditions and terms of employment are problematic
  • Dancers suffer humiliation and sexual harassment on a regular basis
  • Women take on lapdancing jobs through a lack of real employment choices
  • There is a connection between lapdancing and pornography

and recommended a complete overhaul of the licensing regime of the industry.  Despite this report and calls for lapdancing to be tightly regulated Glasgow continues to host this industry.  The continuing normalisation of lapdancing in the city can be evidenced by it being such clubs being considered suitable venues for the hosting of music events, with little issue being seen of the exploitative nature of the industry.

A small victory was however won earlier this week, as the Employment Appeal tribunal judged that Nadine Quashie had the right to appeal the decision made last year that she was self-employed and thus not eligible to take out a case of unfair dismissal against Stringfellows.  This case has got lawyers and accountants knickers in quite a twist and has considerable implications across the sex industry.

Quashie started working at Stringfellows in 2007 before being fired in 2008 over allegations of drug use.  During that time she had a minimum number of shifts she had to work and was prevented from working in other places, as well as performing hourly without direct payment.  Whether you are an employee or self-employed is not a matter of choice but a question of terms of engagement.  HM Customs and Revenue provide a handy little tool to determine employment status, based on substitution, control over worker and financial risk.

Looking first at substitution.  A contractor has the right to send someone capable of carrying out the work in their place.  In this case, Quashie had a minimum number of shifts that she had to work and was expected to turn up personally to do these and indeed she did personally undertake the work, never sending …say a male ballet dancer in her place.  In terms of control over the worker, while she did have control over how the work was done, she was directed to work under particular circumstances – most notably at a particular time in response to a particular stimulus.  The financial risk borne by Quashie was less than that of an independent contractor.  The work was commission only rather than fixed price, there was no obligation to correct sub-standard work and witholding of payment until contract completion, instead there was a system of fines which apply in the case of employment.  Furthermore she not only did not work for any other engager, but was explicitly banned from doing so as part of her contract.

Interesting Quashie wasn’t paid the commission in cash and was indeed banned from accepting cash for payment, but was forced to accept “Heavenly Dollars”, the currency in use in the club.  This is seriously dodgy, although it would appear that it was later transferred into legal currency, at least initially, Quashie was being paid in company scrip, a practice outlawed under the Truck Act, opening up yet another can of worms.

Another argument that was made by Stringfellows was that they did not pay tax or National Insurance on Quashie’s behalf.  Yet they acknowledge that they deducted 25% of her earnings each night.  Quashie claims that she did not realise at first that they considered her self-employed and were taking on employer responsibilities, which seems quite reasonable given the deductions they were making, thus it would seem that rather than evidence of Quashie’s self-employed status, it was evidence of tax-dodging on the part of the employer.

A decision that a lapdancer is an employee rather than a self-employed contractor would have massive ramifications across the industry.   Most notably in circumstances of discrimination and harassment.  Unless in an exempt role, employers cannot specify the gender of the person that they wish to employ.   Harassment, including verbal abuse, suggestive remarks and unwanted physical contact, which are part and parcel of a sex-worker’s life become indirect discrimination and grounds to take action against the employer.

The legal definition of harassment includes conduct which has the effect of, violating the dignity of the worker, or of creating an intimidating, hostile, degrading, humiliating or offensive environment, which pretty much sounds like the working environment for pretty much all sex workers.  Examples might include comments about the way you look which you find demeaning,indecent remarks, questions about your sex life and sexual demands being asked, which is pretty much part and parcel of a sex-worker’s job.

I think the last word on this particular issue should go to Caspar Glyn representing Stringfellows who stated that

To take off your clothes and be paid to do that, it is a curious, unusual situation… which is perhaps in itself unsuited to an employment relationship…

Err…like no shit!

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