Frequent Questions & Issues asked about the Self Employed Status of Dancers
During the research and consultation with dancers several questions came up regarding codes of conducts that were signed, the legal status of fines and some of the rules dancers were expected to keep. We asked a large employment law firm to check out some of these situations and below are the responses (correct as of March 2012).
What is the legal status of the dancer/performer agreement (often called code of conduct)?
The agreement gives the dancer a right, subject to complying with certain rules, to perform at the club, but this right can be terminated by either party. If the contract is signed by both parties then it will be a legally binding document. It should clearly state this is not a contract of employment which provides evidence that the intention of the parties is for the dancer not to be an employee of the club (licensor).
It is possible for dancers to claim they are employed by the club (licensor) as employment status is a matter of substance not form. Just because a dancer signs an agreement stating they are not an employee does not prevent an Employment Tribunal looking at how the relationship works in practice between the dancer and the club (licensor). Depending on the degree of control over the dancer and any obligation to work particular shifts then an Employment Tribunal could decide a dancer is employed by the club (licensor).
It is not possible to say that every dancer could be seen as an employee or that every dancer is definitely self employed. It will depend on the contract between the dancer and the club (licensor) and how the relationship works in practice.
A dancer has the right to be provided with a copy of what they have signed. They should ask for a copy of the contract and the code of conduct. There is no reason why such documentation should not be provided to them.
What actions/options does a dancer have if she feels the contract is unfair?
If a dancer is not happy with any terms of the contract, they should raise this with the club (licensor) before they sign it. The dancer should then try to renegotiate the terms which they are unhappy with. However, it is unlikely the club (licensor) will agree to amend its terms – it will probably say such terms are standard and non – negotiable.
If a dancer has signed the contract and then seeks to change the terms of the contract, she will probably run the risk of the club (licensor) terminating the agreement, or if the dancer does not want to be bound any longer by such terms, she should terminate the contract.
What is the legal situation around contractors fining self employed individuals they contract?
There is nothing stopping the club (licensor) making the issue of the ‘fines’ part of the contract and fining dancers if they breach the rules. Unless the terms of the contract contravene the Unfair Contracts Terms Act 1977), there may be little redress the dancer has in relation to being fined. If a dancer felt their conduct did not warrant being fined, they should appeal against the fine – the rules of conduct provide for this.
However, it is possible that the fine could be challenged as being a “penalty clause”. In other words the fine does not bear any relation to the loss that the club (licensor) may face as a result of the breach of the rules then the dancer could bring a claim alleging that the fine could not be lawfully imposed.
If some dancers are fined more than what is specified as a maximum fine in the house rules/agreements they signed, what would be the legal status?
If a dancer is fined for something (or an amount) which does not appear in the code of conduct then arguably the club (licensor) does NOT have the contractual right to impose the fine on the dancer.
At what point and on what basis would such fines be deemed unreasonable?
It could be argued that fines are unreasonable where they are not clearly stated within the code of conduct or they are imposed in an arbitrary manner. The content of the code of conduct and the way fines are imposed on dancers may (from the dancers’ perspective) be better challenged by the council which grants the club’s (licensor’s) licence.
Some clubs require women to wear specific clothing, is this fair?
A club is within its rights to insist on dancers wearing a uniform and making it a conditional term that they pay for their own uniform. It is for the dancer to choose whether to accept such terms. As the dancer has paid for the uniform, they own it and are thus entitled to retain it in the event the contract is terminated.
What are the general employment rights/legal protections for self employed people generally?
Whilst dancers are classed as ‘self employed’, it is possible they could be classed as ‘workers’. A worker is someone, who on the one hand is not an employee but on the other hand cannot be regarded as carrying on a business. If a dancer is a worker they would have some employment rights. These would include:
- The right not to have unlawful deductions made from wages
- To be paid the National Minimum Wage (2012 = £6.08 for 22 and over and £4.98 for individuals aged 18 – 21).
- The right to paid annual holiday
- Protection from discrimination, for example sexual harassment
The distinction is not always clear between those who are regarded as carrying on their own business and those who are regarded as workers. The assessment will have to be made on a case by case basis and it is not possible to say that all dancers will be regarded as carrying on their own business or that all dancers will be regarded as workers.
Some clubs operate an IOU system in terms of claiming part of their earnings the week after their shift. Is this legal?
If a dancer is not paid in accordance with the terms of the contract then technically, the club (licensor) has acted in breach of contract. If the ‘IOU’ is not settled by the club (licensor) then the dancer has the contractual right to recover such sums from the licensor.
Remember self employed people can join trade unions, they can advise you on your rights & represent you should you wish. Go to the trade union section.