Kelly v Northern Ireland Housing Executive ; Loughran v Same
| Jurisdiction | England & Wales |
| Judge | LORD SLYNN OF HADLEY,LORD GRIFFITHS,LORD LLOYD OF BERWICK,LORD STEYN,LORD CLYDE |
| Judgment Date | 29 July 1998 |
| Judgment citation (vLex) | [1998] UKHL J0729-3 |
| Court | House of Lords |
| Date | 29 July 1998 |
[1998] UKHL J0729-3
HOUSE OF LORDS
Lord Slynn of Hadley
Lord Griffiths
Lord Lloyd of Berwick
Lord Steyn
Lord Clyde
(Northern Ireland) (Conjoined Appeals)
My Lords,
These two appeals raise important questions as to the application of sections 17 and 23 of the Fair Employment (Northern Ireland) Act 1976. Those sections fall in part III of the Act "Unlawful Discrimination" and provide:
"Acts of unlawful discrimination 17. It shall be unlawful for an employer to discriminate against a person, in relation to employment in Northern Ireland, -
(a) where that person is seeking employment-
(i) in the arrangements the employer makes for the purpose of determining who should be offered employment, or
(ii) by refusing or deliberately omitting to offer that person employment for which he applies, or
(iii) in the terms on which he offers him employment; …"
23. It shall be unlawful for a person who has power to confer on another a qualification which is needed for, or facilitates, his engagement in employment in any capacity, or in a particular employment or occupation, in Northern Ireland to discriminate against him-
(a) by refusing or deliberately omitting to confer that qualification on him on his application, or
(b) in the terms on which the person is prepared to confer it, or
(c) by withdrawing it from him or varying the terms on which he holds it."
By section 16 of the Act:
'discrimination' means-
(a) discrimination on the ground of religious belief or political opinion; or
(b) discrimination by way of victimisation;"
A person discriminates against another person on the ground of religious belief or political opinion if, on either of these grounds, "he treats that other person less favourably in any circumstances than he treats or would treat another person in those circumstances." By section 57 of the Act, unless the context otherwise requires:
'employer' means-
(a) in relation to a person who is seeking employment, anybody who has employment available;
(b) in relation to a person employed under a contract of service or of apprenticeship or a contract personally to execute any work or labour, the person entitled to the benefit of that contract;
… and 'employee,' correspondingly, means such a person as is first mentioned in paragraph (a), [or] (b) … of this definition; …
'employment' means employment under a contract of service or apprenticeship or a contract personally to execute any work or labour, and, without prejudice to the definitions of 'employer' and 'employee' above, related expressions shall be construed accordingly;"
"'qualification' includes authorisation, recognition, registration, enrolment, approval and certification;"
As to the meaning of "person" it is to be borne in mind that by section 5 and Schedule 1 to the Interpretation Act 1978, unless the contrary intention appears, "person" includes a body of persons corporate or unincorporate.
At all relevant times Mr. Loughran, a solicitor, practised in Omagh Co. Tyrone as "Oliver M. Loughran & Co." This was not a partnership; he was the sole proprietor and principal though he employed one assistant solicitor. Mrs. Kelly, also a solicitor, practised in partnership with Mr. Hugh Finnegan as "John Hoy, Son & Murphy" in Dungannon Co. Tyrone.
The Northern Ireland Housing Executive, appellant in the first ("Loughran") appeal and respondent in the second ("Kelly") appeal is a non-departmental body set up by statute as the housing authority for Northern Ireland. It has its own legal department but, in addition, since 1980, it has engaged solicitors in private practice to defend public liability claims against it. Solicitors so appointed constituted members of a Panel to do such work for a particular area in Northern Ireland. The method of appointing solicitors so to act has varied from time to time. In 1988, however, it was decided that Panel members should be appointed for three years and that at the end of each appointment there should be an open competition. In November 1990 all firms of solicitors in Northern Ireland were notified that three year appointments were to be made and applications were invited. For the "West Panel" a firm, Orr & Roundtree was appointed eventually until 30 June 1994.
In May 1994 all "firms" of solicitors in Northern Ireland were again invited to apply for a new three year period of appointment. Nine "firms" of solicitors applied of whom one Millar, Shearer & Black of Cookstown Co. Tyrone was appointed. Included in the nine applicants were "John Hoy, Son & Murphy" and "Oliver M. Loughran & Co." They not having been appointed, Bernadette Kelly and Oliver Loughran applied to the Fair Employment Tribunal constituted under the Fair Employment (Northern Ireland) Act 1989, each contending that they believed that they had appropriate qualifications and experience for the work and that they had been discriminated against on the grounds of religious belief and/or political opinion contrary to sections 17 and 23 of the Act.
It should be said at once that the Executive denies that there was any such discrimination but it took the points that the Tribunal had no jurisdiction since the Act did not apply in that (1) the applicants had not sought employment under "a contract personally to execute any work or labour" and (2) that a refusal or omission to appoint to a Panel was not a refusal or omission to confer a qualification.
The Tribunal ordered these points to be dealt with as preliminary issues and decided on 18 April 1996 that neither Mr. Loughran nor Mrs. Kelly had shown that the Executive was an "employer" within the meaning of section 17 of the Act; nor was the Executive refusing to confer a qualification on them within the meaning of section 23 of the Act. Accordingly the Tribunal rejected their applications.
The Court of Appeal on 22 May 1997 agreed with the Tribunal that no claim could be made under section 23 of the Act; they also agreed that Mrs. Kelly, as a partner in her firm, could not pursue her claim since she was not seeking to be employed under a "contract personally to execute" work. Her appeal was dismissed. On the other hand they held that Mr. Loughran, as a sole practitioner (i.e. sole principal and proprietor) could claim that he was seeking to be employed. His appeal was accordingly allowed.
Before your Lordships Mr. Long Q.C. on behalf of the Executive has contended that the Tribunal was right that neither claimant sought "a contract personally to execute any work or labour." Mr. Loughran and Mrs. Kelly contend that their case should go forward to be heard on the merits.
Mr. Long Q.C. showed your Lordships that the phrase "a contract personally to execute any work or labour" is not new or confined to the Act of 1975. It appears in section 10 of the Employers and Workmen Act 1875, in section 8 of the Industrial Courts Act 1919, section 1(6) of the Equal Pay Act 1970, section 82 of the Sex Discrimination Act 1975 and in section 78 of the Race Relations Act 1976. Moreover in section 29(6) of the Trade Union and Labour Relations Act 1974 "employment" includes "any relationship whereby one person personally does work or performs services for another." In other statutes an employee is defined as "an individual who has entered into or works under a contract" with an employer or of employment (e.g. section 8 of the Contracts of Employment Act 1963, the Redundancy Payments Act 1965, section 167 of the Industrial Relations Act 1971).
He also referred your Lordships to a number of cases under the Truck Act (1 and 2 W4 c37) to the effect that a person who undertakes work and employs several or many men to do, or to assist in doing, the work is not an artificer or workman for the purposes of the Truck Act which prohibited payment other than in the currency of the realm (e.g. Ryder v. Warde [1848] 154 E.R. 405; Sharman v. Sanders [1853] 138 E.R. 116.) He referred also to Tanna v. Post Office [1981] I.C.R. 374 where the appellant applied to be appointed as a sub-postmaster. He was required only to provide premises and to ensure that services were provided without being obliged personally to do anything. In a case brought under section 4 of the Race Relations Act 1976, the Employment Appeal Tribunal held that he was not seeking to be employed "under a contract personally to execute any work or labour." The Employment Appeal Tribunal held that these words required "that the person entering into a contract shall himself be under an obligation personally to do work or labour." It may well be that some of what he undertakes to do he may delegate; but in our judgment it is essential, for there to be "employment," that the person making the contract shall himself undertake to do, at any rate, some of the work or labour.
Two other cases have been referred to in detail by both sides. The first is Mirror Group Newspapers v. Gunning [1986] 1 W.L.R. 546. In that case an application was made by a woman to have transferred to her her father's agency for the wholesale distribution of Sunday newspapers. She said that this application was refused in breach of section 6 of the Sex Discrimination Act 1976. The Industrial Tribunal and the Employment Appeal Tribunal by a majority held that there was here employment in the sense of "a contract personally to execute any work or labour" since the agent had to be directly involved in the supervision of the work. It was accepted by both parties and by the Court of Appeal that this statutory definition of employment went beyond the relationship of master and servant. Oliver L.J. ruled that "what is contemplated by the legislature in this extended...
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