Kelly v. Northern Ireland Housing Executive

The House of Lords considered the scope of "employment" in section 57 and the meaning of sections 17 and 23 of the Fair Employment (Northern Ireland) Act 1976. The court held that the phrase "a contract personally to execute any work or labour" can cover a sole practitioner who undertakes to perform the essential part of the work personally and, in appropriate cases, a firm (and an individual partner designated by the firm) can be treated as the contracting person. However, the court held that appointment to a client panel did not amount to the grant of a "qualification" within section 23. Accordingly claims under section 17 could proceed for the sole practitioner and for the partner who was designated to be mainly responsible, but the section 23 claims failed.

The appeals arose from applications by two solicitors, Oliver M. Loughran (a sole practitioner) and Bernadette Kelly (a partner in a two-person firm), who alleged that the Northern Ireland Housing Executive discriminated against them on grounds of religious belief and/or political opinion by refusing to appoint their firms to a panel of solicitors. They sought to bring complaints under sections 17 and 23 of the Fair Employment (Northern Ireland) Act 1976. The Fair Employment Tribunal decided as preliminary issues that the Executive was not an "employer" for the applicants because they were not seeking "employment" under "a contract personally to execute any work or labour," and that the refusal to appoint did not amount to refusal to confer a "qualification" under section 23. The Court of Appeal allowed the sole practitioner's appeal but dismissed the partner's appeal; both appeals failed on section 23.

The House of Lords framed the issues as:

• whether the applicants were seeking "employment" within the extended definition in section 57 (in particular whether their applications amounted to seeking a contract "personally to execute any work or labour");
• whether a firm or an individual partner can be a "person" for these purposes; and
• whether appointment to the Housing Executive's panel was a "qualification" within section 23.

The majority held that a sole practitioner who undertakes to be the designated solicitor falls within the extended definition of employment because the dominant purpose of the contract is that he personally will perform the essential part of the work, even though some tasks may be delegated. The majority also held that a partner who is designated by the firm as the person mainly responsible may, in the circumstances, complain individually because the firm contracts and the partner is a constituent of the contracting firm; the Interpretation Act 1978 does not preclude treating an unincorporated firm or its partners as a "person" for these provisions. Finally, the court rejected the argument that appointment to the panel was a "qualification" under section 23, concluding that the statutory concept of "qualification" relates to conferment of a status or recognition necessary for or facilitating the carrying on of a trade, profession or calling, and not to selection by a client to provide remunerated work.

The practical result was that the applicants could pursue discrimination complaints under section 17 (the sole practitioner and the designated partner), but not under section 23.

Appeals allowed in part. The House of Lords held (majority) that a sole practitioner who undertakes to be the designated solicitor is seeking "employment" under a contract "personally to execute any work or labour" and may bring a claim under section 17; similarly a partner designated by a firm to be mainly responsible may bring an individual complaint because the firm contracts and the partner is part of that contracting 'person'. However, appointment to the Housing Executive's panel was not a "qualification" for the purposes of section 23, so claims under section 23 fail. The result was that the claimants could proceed under section 17 but not under section 23.

Fair Employment Tribunal (preliminary issues decided 18 April 1996: applicants held not to be "employees" under section 57 and claim under section 23 rejected) -> Court of Appeal (Northern Ireland) (decision 22 May 1997: allowed the sole practitioner's appeal but dismissed the partner's appeal; both failed on section 23) -> House of Lords ([1998] UKHL 33, 29 July 1998: majority allowed access under section 17 for both the sole practitioner and the designated partner, rejected section 23 claims).