Image from Mina Karenina, Hookers Against Harddship

1. Introduction

For the past year, unions have dominated the headlines. Seemingly unending economic and political turmoil has culminated in a wave of industrial action unprecedented since the Thatcher-era. Soaring living costs, real-terms wage cuts, and unsustainable workloads have left workers in countless industries feeling compelled to strike. Even the Royal College of Nursing voted in favour of industrial action for the first time in its 106-year history.

In response, the UK government has repeatedly interfered with the Article 10 and Article 11 rights of workers, as protected by the European Convention on Human Rights (“ECHR”) and enshrined in domestic law by the Human Rights Act 1998. These rights, protecting freedom of expression and association respectively, have been endangered by measures including regulations permitting the use of agency staff to break strikes, the ‘Minimum Service Levels’ Bill, and reliance on balloting technicalities to reduce the recent Royal College Nursing recent strike by a day.

Against this climate, the work of small grassroots unions like United Sex Workers has increased in equal measures in difficulty and in importance. Membership is open to all sex workers, including those that work as strippers in ‘Sexual Entertainment Venues’ (“SEVs”) and the heavily criminalised ‘full-service’ sex industry. Members’ dues are low to ensure membership is widely accessible, so legal challenges have depended mainly upon crowd-funding. Factors such as oppressive regulation, stigma, and misogyny within the union movement mean sex workers can be seen as a “hard-to-organize” group. Yet studies indicate that, due to soaring economic inequality, record numbers of people depend on sex work as their primary or supplementary income source.

Accounting for these obstacles, the achievements of United Sex Workers are commendable. We consider two recent strategic litigation victories in this piece. The first was the union’s intervention in Kaagobot and ors v City of Edinburgh Council [2023] CSOH 10, a judicial review challenge to the decision of the City of Edinburgh Council (“CEC”) to ban SEVs. Such bans are known as ‘nil-caps’ because the number of SEVs deemed “appropriate” for the locality is set to “nil”. The Court of Session agreed that the nil-cap was unlawful in a ruling that prevented the loss of over 100 jobs. One affected worker was ‘KR’, co-author of this post. Kaagobot followed the union’s involvement in a successful campaign against a proposed nil-cap in Bristol in July 2022.

The second victory was that, separately, KR was recognised as a ‘limb (b) worker’ by Edinburgh Employment Tribunal (KR v Mick Costello and others 4111660/2021). The judgment concerned her work for a SEV in Edinburgh, which would have been closed by the nil-cap. Though employment status is fact-specific, the recognition that KR was a worker is promising for other strippers as she was subject to less control and dependency than is industry-standard. KR built upon the union’s work in Nowak, the first and only other known case where a stripper was found to have ‘worker status’. Furthermore, KR was able to distinguish from a problematic Employment Appeal Tribunal (“EAT”) judgment refusing anonymity to a stripper in a case against the same SEV, criticised for this blog here.

In this post, we analyse some of the noteworthy aspects of the judgments. We then explain how they are reconcilable. We acknowledge that they might generate questions along the lines of: why would KR and United Sex Workers fight for a workplace to stay open, whilst simultaneously accusing the workplace of deliberately denying workers’ rights? The simple answer is that stripping (and all forms of sex work) must be recognised as work. Like all workers, sex workers are entitled to organise to keep their workplaces open whilst simultaneously calling for improved terms and conditions. This sentiment underlies similar battles currently being fought by unionised strippers in the United States and New Zealand.

2. Kaagobot and ors v City of Edinburgh Council [2023] CSOH 10

We explore three ways in which Kaagobot was an important judgment. The first two are that (i) it averted the threat posed to the fundamental rights and protections afforded to workers and (ii) that United Sex Workers were granted permission to intervene, alongside full adverse costs protection. The third is that (iii) the Court held that nil-caps entirely remove a council’s discretion to grant SEV licences. We think this finding makes it even more likely that a nil-cap is a disproportionate form of indirect sex discrimination (prohibited by sections 11 and 19 of the Equality Act 2010), and disproportionately interferes with the right to family and private life (protected by Article 8 of the ECHR).  

Unfortunately, the Court held it was unnecessary to make a finding on whether the nil-cap amounted to indirect sex discrimination. This was the primary ground advanced by the union, given that most, if not all, of the potentially affected workers were female. Furthermore, the Court disagreed that the CEC breached the Public Sector Equality Duty (“PSED”) and found that the union lacked standing for an Article 8 challenge. These shortfalls do not, however, negate the importance of the judgment.

i) Aversion of threat to workers

a. History of nil-caps

It is legal to work at or operate a strip club if it is licensed generally as an entertainment venue, or more specifically as a SEV. Councils have been able to adopt SEV licensing powers in England and Wales since 2009 and Scotland since 2015. It is an offence to operate an unlicensed SEV but it is not an offence to work in one. In contrast, ‘full-service sex work’ is regulated through criminal laws that, in effect, make it legal only if an individual works alone from their home.

In part, SEV licensing powers were introduced to address concern that “existing legislation did not give communities sufficient powers to control where lap dancing clubs were established”. Councils can cap the number of SEVs in the area and set onerous conditions. They can refuse applications simply as they are “inappropriate” due to the “character of the locality”. Licences must be reapplied for annually and the application process is expensive: in Camden, it currently costs £10,000 to apply for a licence and a further £10,000 each year to apply for renewal.

At least fifteen councils have adopted ‘nil-caps’ by setting the number of “appropriate” SEVs for the locality to “nil|. Nil-caps mean all SEVs must close (unless awarded ‘grandfather rights’) and that no new SEVs can open. Other councils have used licensing SEV powers to set a low number of “appropriate” SEVs and impose strict licensing conditions. Nil-caps, and the costs of applying for licences and complying with conditions, have led to the mass closure of SEVs.

The closure of SEVs is an objective of certain pressure groups that lobby councils to enact nil-caps. The groups claim that SEVs cause violence against women and girls (“VAWG”). This claim is not supported by objective evidence, on which councils must base licensing decisions. By legislating for SEV licensing powers, Westminster Parliament and Scottish Parliament recognised stripping as a legitimate activity rather than a form of VAWG. In 2014, a Scottish Executive strategy document did define VAWG as encompassing “commercial sexual exploitation”, including “lap dancing” and “stripping”. Nonetheless, in 2015 the Scottish Parliament legislated so that councils could adopt SEV licensing powers. Accompanying guidance recognised the conflict with the strategy document but confirmed that the legislation was needed to ensure:

… such activities take place in safe and regulated environments … local authorities will need to consider the interaction with their own local policies and strategies, as well as the legal implications around limiting a legitimate business activity to minimise the risk of legal challenge.

The guidance stated that councils could adopt a nil-cap, but should consider if it would have a “disproportionate effect on business” and create a “risk of a legal challenge”.

b. Impact of nil-caps

No council has used SEV licensing powers to centre workers’ rights. Instead, they have been used in ways that worsen the power imbalance between workers and employers, detailed by Clare in her account of over a decade working as a stripper. Clare estimates that the number of SEVs has fallen from approximately 350 to 150 since SEV licensing powers were introduced. Monopolies are held by businesses which, due to a lack of competition, have no incentive to offer competitive terms and conditions to workers.

Clares explains that SEVs do not guarantee wages to strippers. Instead, their income primarily comes from selling private dances to customers. Almost all SEVs then make non-negotiable deductions from workers’ earnings, including commission and fines for alleged misconduct, and most require workers to pay a ‘house fee’ before each shift. House fees and deductions guarantee SEVs a significant income source, but workers run the risk of earning less than they pay to the SEV. SEVs control the level of risk by, for example, unilaterally fixing the rates of house fees and deductions, and how many workers work each shift and so compete for customer attention. KR explains that:

There is always a risk of earning little or even nothing from a shift, especially on quiet nights. Customers have become less generous due to the economic downturn. Clubs keep increasing how much they take from us but prohibit us from charging customers more, as they want to keep customers happy. They also indirectly profit from us as the obvious reason customers go to strip clubs is to see strippers. Clubs profit from entry fees and drink purchases but do not care about the nights we earn less than minmum wage. Councils could step in to prevent this but have just made the situation worse.

Furthermore, SEVs impose various rules which, as Nowak and KR show, establish the “control” that is the “touchstone” of worker status as observed by Lord Leggatt in Uber ([87]). Yet, SEVs universally insist strippers are self-employed to deter challenges to unfair practices via employment law.

Still, stripping provides the livelihoods of thousands of workers in the UK. A power imbalance between the employer and worker is hardly unique to the stripping industry: dependency and control (and sometimes subordination) are the ultimate markers of worker status (see Davidov, Bogg and Ford, Atkinson and Dhorajiwala). KR explains why she continues to work as a stripper: 

I still consistently earn much more than I would in other jobs over shorter periods. I only need to work two or three times a week. I can take (unpaid) leave whenever I want if I give notice. At my current club there is no requirement to work on set days or a set number of shifts each week, I work when it suits me. I would never have the same earning potential and flexibility in other jobs, even though I earn little on some nights.

Flexible working patterns and relatively low barriers to entry are repeatedly given as reasons for why minoritised groups are disproportionately represented in stripping. There are strong parallels here to gig economy work, for which labour lawyers agree the solution is increased rights and protections, not policies aimed at eliminating the type of work entirely.

c. Adoption of a nil-cap in Edinburgh

A nil-cap would have impacted over 100 female workers in a city suffering from soaring living costs, housing shortages, and unemployment/underemployment. KR explains the likely consequences for her:

Transitioning into a ‘normal job’ would have been incredibly difficult. Stripping has been my only job for the past five years. I would only be able to get an entry-level, low wage job as stripping is not considered work by most mainstream employers. I would struggle to explain the five-year-long CV gap. If I was honest, I would likely not be hired.

Given the current job market and the jobs I would have been eligible for, my income would have been reduced by around 75%. I simply would not be able to afford basic expenses. Paying for small luxuries and saving (like all workers deserve!) would have been out of the question. To recover my loss of earnings I would have considered full-service sex work or online sex work. I had ruled out these forms of sex work previously because they involve different types of risks. I would also have worked at private events like stag-dos. These parties are far more dangerous as there is no security or CCTV.

If I wanted to keep working as a stripper I would have to uproot my life and separate from my partner to move to a different city to work. All this would be extremely detrimental to my mental health.

For others, securing flexible alternative employment that would accommodate health conditions or caring commitments would have been near-possible. Some would have turned to sex work in illegal venues, making them more vulnerable to the VAWG that supporters of nil-caps claim to campaign against. The CEC’s Impact Assessment recognised that a nil-cap “could lead to unemployment which would not only impact on the worker but also any family members…it could cause the sexual entertainment to operate ‘underground’ in unregulated locations which would create a greater chance of performers being a victim of crime”.  The welfare system would have not provided a safety-net: a House of Commons committee has recognised that the inadequacy of the system turns people turn to sex work in the first place.

The CEC’s nil-cap received a great deal of resistance and negative publicity. In 2019, the CEC first consulted on adopting SEV licensing powers. 65% of 806 responses supported their adoption, but the CEC did not ask specifically about whether the number of SEVs should be capped. In 2020, evidence hearings took place in which workers supported the licensing of SEVs but strongly opposed a nil-cap, asking the CEC to instead use their powers to centre workers’ rights. Another consultation occurred in 2021 and only 20% supported a nil-cap. There were just 89 respondents. Nonetheless, the CEC pressed ahead and adopted a nil-cap in March 2022 by 5 to 4 votes. We both spoke at the CEC hearing. KR recalls that:

I along with other dancers and union reps spoke at hearing where the nil-cap was adopted. Addressing the councillors at the meeting directly we pointed out the dangers of implementing a nil cap and the devastating impact this will have on workers. We reminded them that there is no evidence to support the claim that strip clubs contribute to VAWG. Since they really didn’t have ‘’evidence’’, I believe the decision was made based on councillors’ opinions and moral views.

24,139 people signed a petition calling for its reversal. After the judicial review petition was issued, the CEC passed a motion acknowledging that strippers “may continue to work in the industry despite possible closures and may be working in less safe and completely unregulated environments” which “could lead to the further deterioration of performers’ safety”. However, it declined to reverse the nil-cap and simply committed to another consultation, which would only have prolonged uncertainty for workers.

The nil-cap would have interfered with various fundamental rightsand protections. It would have affected the “right to freely chosen or accepted work, including the right not to be deprived of work unfairly” as protected by Article 6 of the International Covenant on Economic, Social and Cultural Rights. United Sex Workers’ concern was for the protection afforded to its members against indirect sex discrimination under sections 11 and 19 of the Equality Act 2010, and for the right to family and private life protected by Article 8 of the ECHR. The latter can be violated by measures that, for example, end someone’s employment (Denisov v Ukraine (no. 76639/11)) or have a disproportionate effect on the “inner circle” of someone’s private life (Platini v Switzerland (no. 526/18)). Even though the Court did not reach a finding on the substantive merits of these challenges, the quashing of the nil-cap still protected the fundamental rights, freedoms and protections afforded to affected workers.

ii) Permission to intervene and full adverse costs protection

United Sex Workers intervened in the SEVs’ judicial review as, otherwise, workers had no voice in the challenge. For example, KR felt unable to openly participate because: 

Anonymity was unlikely and I did not want to be outed to my family and future employers. Most people do not know I am a stripper. The judicial review was getting lots of media attention, this could have potentially made me a public target of hate and misogyny and online harassment. The anti-SEV campaigners openly blamed strippers for male violence and I was intimidated by them.  

I was also scared of my former employer using anything I said in the judicial review in my Tribunal claim. I was worried that they would say I was contradicting myself by saying that they treated me unlawfully, but also calling for the club to stay open. I do not think that there is any contradiction between workers fighting to keep workplaces open but also challenging mistreatment by individual employers. Workers in all other industries can do this. But the current licensing regime makes dancers scared to speak openly, leaving the power with employers

The union, therefore, had to show it had ‘representative’ standing and obtain permission to intervene. Furthermore, it needed full adverse costs protection. The union crowd-funded over £21,000, but this was only enough to cover its representative’s legal fees (which were capped). Full adverse costs protection and representative standing for judicial reviews in Scotland is traditionally rare in ‘public interest’ litigation.

Fortunately, the Court of Session granted the application in full. This was particularly an achievement as the CEC fiercely resisted the union’s involvement in the challenge. A Freedom of Information request revealed that the CEC had spent £117,011 in legal fees on defending the challenge overall, even before paying the SEVs’ adverse costs. The resistance followed a pattern of contempt for workers. The nil-cap was passed with Labour and Conservative councillors voting together, and the deputy leader of the CEC Labour Party refused to visit workers in SEVs, declaring they were “not workers”.

iii) Nil-caps as absolute bans on SEVs

Finally, Kaagobot was an important judgment because it confirmed that nil-caps completely exclude councils’ discretion over whether to grant SEV licenses. The CEC had relied on incorrect legal advice which claimed nil-caps only create rebuttable presumptions against licences being granted. The nil-cap was therefore unlawful as it was “far from plain and obvious” that, if the correct advice had been given, the “resulting decision would have been the same” ([165]). This finding is pertinent as the complete exclusion of discretion makes it less likely that a nil-cap could withstand a proportionality assessment as part of an indirect discrimination or Article 8 challenge (i.e. in consideration of whether “less intrusive” measures were available).

iv) Outstanding questions

a. No finding on indirect sex discrimination

To establish indirect sex discrimination under sections 11 and 19 of the Equality Act 2010, the union needed to show that the nil-cap was (i) a “provision, criterion or practice” (“PCP”), (ii) that would apply to both men and women, (iii) but would put women at a “particular disadvantage” compared to men, and (iv) that the affected women included some of the union’s members. The burden then fell on the CEC to show the nil-cap was a proportionate means of achieving a legitimate aim.

The CEC appeared to accept that elements (i) – (iii) were satisfied: the fixing of the “appropriate number” of SEVs in Edinburgh at ‘nil’ was a PCP that would place a group of women at a “particular disadvantage” when compared to a comparable group of men ([195]). The Court did not provide its own analysis of whether the union had established these elements. The union would have needed to show that there was “no material difference” between the female and male comparator group aside from sex (Equality Act 2010, s.23). The comparator group therefore would have been male strippers based in Edinburgh. Male strippers primarily work at private events (such as ‘hen-dos’) or perform on novelty nights at night clubs, not licensed SEVs and so would not be disadvantaged by a nil-cap. “Disadvantage” is not defined in the Equality Act 2010 but includes a “denial of an opportunity or choice, deterrence, rejection or exclusion”. The forced closure of an individual’s workplace would undoubtedly qualify, especially in circumstances that exposed the worker to various risks of harm.

The only defence raised to the section 19 challenge by the CEC was that it was “premature” because, until the nil-cap took effect, it was unclear how union members would be impacted. This submission was misguided: section 19 expressly permits courts to account for future or hypothetical disadvantage as it applies to both actual and prospective PCPs. It would undermine the Act’s purpose if it had only reactive, rather than preventative, effect. The nil-cap was prima facie discriminatory.

Consequently, the main substantive issue for the Court to determine here was whether the CEC could justify the nil-cap. Based on the surrounding debate, the CEC might have particularised reducing VAWG as its legitimate aim. Yet, there is no credible evidence showing that nil-caps reduce VAWG. Licensing authorities are required to exclude moral stances on sex work when making SEV licensing decisions (R v Newcastle Upon Tyne CC ex parte The Christian Institute [2001] LGR 165 [9]; Home Office Guidance, 18). Notwithstanding the erroneous advice given elsewhere, the CEC was correctly advised that it: “should exclude moral opinion in its decision-making process and make a decision based on the evidence before it”. This advice may explain the CEC’s decision not to identify VAWG reduction as its legitimate aim. However, it is unclear why the CEC failed to identify a legitimate aim or make any submissions on justification all together, relying solely on the erroneous submission that the challenge was premature.

The most disappointing aspect of the judgment was, therefore, that the Court declined to make a finding on indirect sex discrimination. It found it was unnecessary to do so because it had already held that the nil-cap was unlawful ([198]). It is hoped that the risk of costly litigation and public backlash will deter councils from adopting nil-caps in the future. If one is adopted, then a challenge based on indirect sex discrimination should be pursued.

b. No breach of PSED

In contrast, the Court found against United Sex Workers in respect of its PSED challenge ([200] – [204]). The union argued that the CEC failed to have “due regard” to the need to eliminate discrimination (Equality Act, s.149). It cited a range of authorities such as Bracking ([77]-[79]), which makes clear that the PSED is not a mere formality: it must be “exercised in substance, with rigour, and with an open mind. It is not a question of ‘ticking boxes’.”

The Court’s conclusion that the PSED was not breached is questionable. It cited only one authority, Sheakh. That case is clear that the PSED does not mandate a specific “substantive result” or “particular procedure”, and that “courts should not engage in an unduly legalistic investigation”. But, it is doubtful that the Impact Assessment discharged the PSED: for example, it acknowledged some of the risks to workers but did not consider how they might be eliminated (Bracking, [25]).

c. No standing for Article 8 ECHR challenge

Finally, the Court found that the union lacked standing under section 7(1) of the Human Rights Act 1998 to bring the Article 8 challenge ([205]-[208]). The union relied on three Strasbourg cases where representative standing was found for Article 8 challenges (Lizarraga; Beizaras; Frolov). Crucially, the challenge was not ‘actio popularis’ as the Court was provided with affidavits of members (like KR) who were directly affected. If standing was denied, the union submitted that the Article 8 protection afforded to these members would be “ineffectual and illusory”. The nil-cap would disproportionately interfere with its members’ rights to family and private life, as protected by Article 8 of the ECHR.

The Court rejected the union’s arguments and distinguished from the cases cited. For instance, in Lizarraga and Beizaras, the Court relied on that the organisations were applicants, not intervenors. The Court was unconvinced that denying standing rendered Article 8 “ineffectual and illusory” as, despite the “potential difficulties in relation to questions of expense and anonymity”, members could have applied for anonymity and costs protection ([208]). The narrow approach to standing appears out of keeping with Strasbourg jurisprudence:

…the Court has held that in modern-day societies recourse to collective bodies such as associations is one of the accessible means, sometimes the only means, available to citizens to defend their particular interests effectively. Moreover, the standing of associations to bring legal proceedings in defence of their members’ interests is recognised by the legislation of most European countries… Any other, excessively formalistic, conclusion would make protection of the rights guaranteed by the Convention ineffectual and illusory (Beizaras and Levickas v Lithuania no. 41288/15).

Like the question of indirect sex discrimination, the compatibility of nil-caps with Article 8 consequently remains open to a legal challenge.

3. KR v Mick Costello and others 4111660/2021

Edinburgh Employment Tribunal found that KR had ‘worker status’ in November 2022, three months prior to the Court of Session’s judgment. The substantive merits are yet to be determined. KR summarises the facts:

I worked at the SEV for just under four months until, due to COVID-19, it was legally required to close in March 2020. I planned to work at the SEV as my permanent and only job, having just moved back to Edinburgh and having worked there in the past. However, when it reopened, I was not allowed to return. In my opinion, this was because I joined the union when the SEV was closed and give an honest witness statement in support of another claim against it. I was transparent to the owner about this and still really wanted to return to the club – I optimistically hoped that the club would work with the union to ensure we were accurately treated given rights as workers or the rules were changed so we were actually self-employed.

The SEV resisted the claim by arguing that KR was self-employed. We explore two reasons for the judgment’s significance: (i) the Tribunal’s approach indicates that other strippers, working under standard industry arrangements, are likely also workers and (ii) KR was granted anonymity, despite a claimant previously being denied anonymity in respect of a claim against the same club.

i) Implications for KR and the wider industry

KR’s employment status was not clear-cut. She had much more autonomy than the Claimant in Nowak. There were no written rules; she was not required to work a certain number of shifts or shifts on certain days; the SEV did not play a role in her payment; and except for a house fee, the SEV did not make deductions. KR could sometimes send a substitute and could work elsewhere. No other worker was willing to give evidence to support her, out of fear for their jobs. Nonetheless, KR felt compelled to bring a claim:

Being told we were self-employed, we could be fired at any time for any reason, which makes it impossible to negotiate working condition. Just forgetting about it and leaving one club for another wouldn’t improve the situation for myself or anyone else. I really felt that I had no other choice but to bring a claim.

The club was represented by a team of solicitors. There were several preliminary hearings and then a six day hearing on my employment status. Many times I felt like giving up but I am so glad I didn’t. 

We argue below that the findings on mutuality of obligation and the purposive approach demonstrate the likelihood of other strippers having worker status.

a. Mutuality of obligation

It is now settled law that worker status does not require mutuality of obligation greater than that needed for any contract (Uber, [91]; Somerville, [54]). In contrast, employment contracts still require an “irreducible minimum of obligation” beyond that required for a standard contract, with the precise meaning of this concept remaining elusive. The Respondents claimed to accept that an “irreducible minimum of obligation” was not required for worker status, but still argued that certain obligations were, in fact, needed. In particular, they pointed to that the SEV was neither obliged to financially remunerate KR nor to offer her shifts.

Accepting KR’s submissions, the Tribunal confirmed that neither obligation was needed for an individual contract governing each shift (whether KR had an umbrella contract will be determined at the final hearing) ([82]-[97]). Only ‘consideration’ needed to establish any contract was required (Singh). Consideration included the SEV’s provision of the premises, pole, stage, security, changing rooms, exposure to paying customers, and booths for private dances. This finding accords with the purposive approach for employment status: when employers control when and how often work is offered, they should not be able to rely on this control to then deny worker status.

b. The purposive approach

KR submitted that she worked under “false self-employment”, shown by dependency and subordination, of which control is the “touchstone” ([62]). She claimed that the SEV’s control over the rates she could charge, the fixed house fees, and the lack of guaranteed earnings ensured she was economically dependent on the SEV. The SEV restricted the number of workers per shift and gave preference to those who had worked at the SEV for the longest. KR could not start or leave early without permission. Cancellations were “actively discouraged” and could result in “reduced shifts, or no shifts”. KR had to perform unpaid, topless stage shows when instructed by management. The SEV had “ultimate discretion” over substitution, which was arranged primarily by the SEV who maintained a ‘cancellation list’ of approved strippers available for each shift. On one occasion, KR had to work whilst ill when the SEV could not find a substitute ([24]-[38]).

The Tribunal’s approach to the test for ‘limb (b) worker’ test reflects the purposive approach. Very broadly, this approach requires that employment law is interpreted in accordance with its overarching purpose: the alleviation of the vulnerabilities of employees and workers (see Davidov, cited in Uber ([75]). The Tribunal paid heed to the purposive approach [79] recognised that the working arrangements were deliberately manufactured to maximise the SEV’s profits whilst avoiding its employment law obligations. For example, the Tribunal observed that the owner “made it very clear to the strippers that she did not want conversations taking place about worker status and that pressure was put on the strippers to state that they were self employed” [23].

c. The wider industry

Even though employment status is fact-specific, we think that KR indicates that most (if not all) strippers work in ‘false self-employment’. Studies indicate that the SEV had, by far, some of the most ‘relaxed’ rules in the industry. KR explains that:

Some of the rules where I currently work include:

  • If we cancel, we are fined around £100 depending on the shift OR we have to work three extra weekdays to make up for it
  • If we are late without permission, prevented from working or fined
  • We have to be present on the club floor during the first and last hour of the shift (ie we can’t take a break) – otherwise we can be fined or sacked
  • We have to perform topless stage shows for the length of two songs when our name is called – we are fined £25 if not
  • They take 30% to 50% cut from our earnings alongside house fees

A lot of the times strippers are young and new to working in general or they are new to the country. Then they probably have very limited financial means when they start work and no support network. Sometimes they don’t even speak English very well. This makes them a lot more vulnerable to being treated unfairly and a lot less likely to fight back. Also managers always tell strippers that they are definitely self employed and push that narrative aggressively, so many dancers are likely to believe that.

But we now have another decision that proves we can be workers, meaning other claims can be brought and would more likely succeed.

The judgment, like Nowak, consequently provides strippers across the UK with a vital collective bargaining chip against SEVs, as they can assert that they are entitled to all of the rights and protections afforded to limb (b) workers. The risk of litigation should encourage SEVs to take these assertions seriously. This is notwithstanding that worker status is an imperfect tool for redressing the varied workplace concerns of strippers as argued by Barbagallo and Cruz.

ii) Anonymity

KR needed anonymity to proceed with her claim. She explains why it was so important:

I would have withdrawn my claim if I was not anonymous. The club again would have gotten away with (in my view) unfairly treating workers. Being outed as a stripper would limit my career prospects but it could also get me banned from working at other clubs if they found out I had brought a claim, as they would be worried I was a trouble-maker.

Previously, the union helped a member obtain anonymity for a full-service worker in the first known indirect sex discrimination concerning sex work under the different test applicable to civil claims. However, in 2021 the EAT had denied anonymity to a stripper in a claim against the SEV which was the subject of proceedings in KR, in a judgment criticised for this blog here.

Fortunately, KR was able to distinguish from the EAT case. Anonymity must be granted if “necessary in the interests of justice or in order to protect the Convention rights of any person” (Rule 50 ET Rules of Procedure). Tribunals must give “full weight to the principle of open justice and to the Convention right to freedom of expression”. This requires a fact-based assessment and so the Tribunal was not bound by A to reach any particular finding. KR emphasised that the threat to her employment prospects and personal relationships endangered her Article 8 rights. It is hoped that other strippers may be able to anonymously pursue Employment Tribunal claims, relying on similar arguments, in the future.

4. Reconciling the judgments: sex work as work

At face-value, a tension might appear between KR and Kaagobot. In A and KR, the Claimants, represented by United Sex Workers, claimed the SEV deliberately sought to avoid its employment law obligations. Yet, in Kaagobot, the union and KR fought to keep the SEV open.

This apparent inconsistency is reconcilable. As a matter of basic principle, United Sex Workers are committed to helping members challenge unlawful treatment. The judgments showed that, in both cases, the union was on the right side of the law. Furthermore, any confusion is resolved by recognising that stripping is a form of work. KR believes that:

All business exploit workers by putting profit over respect for labour rights. Most industries and workplaces started out as extremely exploitative and still are. Others would have remained so without push-back from workers and collective organising. The sex industry is further behind as other industries (especially male dominated ones) have been able organise openly. It’s very difficult for sex workers to organise when dealing with stigma and unfair laws.

The only way to have any improvements to workers’ rights is to keep the workplaces open and operating within a legal framework. Having a legitimate workplace is a prerequisite to having rights and protections as a worker.. I don’t want SEVs to be banned, sex workers will just turn to illegal work. I want them to treat the workers better and for the workers to have a legal routes to challenging any mistreatment.

I do think that in their current business model in strip clubs is exploitative from labour rights perspective – not sexually exploitative! I put up with it as the amount of money I am able to make in short periods compensates to a degree. But many of the practices are unlawful if we are workers, as we were able to prove in my claim.

Coined by the late sex worker activist Carol Leigh, sex workers have been organising behind the slogan ‘sex work is work’ for decades. Some Marxist feminists such as Cruz helpfully categorise sex work form of ‘socially reproductive labour’, being labour that indirectly contributes to capitalist economies whilst being un/underpaid and feminised. Theory aside, cases such as Nowak, KR, and Kaagobot show that ‘sex work is work’ has legal force. The CEC Councillor was wrong to claim that “dancers are not workers… it is not in the council’s gift to confer workers rights on them”.

All employment relations are marked by power imbalances favouring the employer. Yet, the sex industry is singled out for abolition, with the livelihoods and rights of workers being disregarded as collateral damage. Legal models aimed at eliminating the demand for commercial sex do not work. Studies show they force the industry underground, make sex work more dangerous, and deny workers legal recourse. They fail to address the structural inequality that creates demand for work from workers in the sex industry. The tired debate over whether sex work is ‘empowering’ or ‘degrading’ misses the point – it is a form of labour that, like other workers, sex workers rely on to meet their basic needs. Like all workers, strippers must be able to use the law to keep their workplaces open and challenge scrupulous employers, whilst simultaneously organising for improved working conditions across the industry. As Bano captured, strategic litigation can be an important tool “but legal challenges simply can’t replace the power of organised labour”.

5. Conclusion

The state should facilitate, not undermine, efforts by workers to acquire greater control over their labour power. Councils should use SEV licensing powers to centre workers’ rights. In England and Wales (unlike Scotland), councils are not obliged to fix an “appropriate number” and should decline to do so to avoid monopolies being established.

Councils can instead use their SEV licensing powers to require that strippers are either recognised as having ‘worker status’, or that working arrangements are adjusted to ensure that they are genuinely self-employed. Nil-caps are vulnerable to legal challenges, as they likely amount to indirect sex discrimination and disproportionately interfere with the rights to private and family life protected by Article 8 of the ECHR. Unfair employment practices in SEVs can also be challenged based on the rights and protections afforded to limb (b) workers.

About the authors:

Danielle Worden is a third-year PhD candidate at UCL Laws, supervised by Professor Virginia Mantouvalou and Professor Alison Diduck. Her research interests are in labour law, human rights law, and precarious work. Her doctoral research focuses on sex work. She previously worked for United Voices of the World (of which United Sex Workers was a branch, before affiliating with BFAWU) and represented KR in her Employment Tribunal proceedings.

KR has worked as a stripper for almost a decade. She is an active member of United Sex Workers. Outside of work, she enjoys spending time with her family and friends.

(Suggested citation: D Worden and KR, ‘”We want to strip off our clothes, not our rights”: part two’, UK Labour Law Blog, 4 May 2023 available at