Legal Services Commission v Patterson Rev 2

A contract falls within the extended statutory meaning of employment only if it obliges a contracting party personally to execute work or labour and that obligation is the contract’s dominant purpose. Legal responsibility for performance, or an expectation that the contractor will work personally, is insufficient.

An accreditation is an authorisation or qualification facilitating engagement in a profession where an empowered qualifying body confers a work-related status which makes carrying on that profession easier. Accreditation permitting a solicitor to undertake publicly funded work met that test under section 12 of the Race Relations Act 1976.

A sole-practitioner solicitor alleged racial discrimination in the handling of her application to the Legal Services Commission for full franchise status and a three-year contract to undertake publicly funded legal work. The Employment Tribunal held that it lacked jurisdiction under sections 4 and 12 of the Race Relations Act 1976. The Employment Appeal Tribunal reversed that decision on both sections.

The Commission appealed. The Court of Appeal had to decide whether the proposed contract was employment because it required the solicitor personally to execute work or labour, and whether the franchise was an authorisation or qualification facilitating engagement in the solicitors’ profession.

1. The appeal was allowed under section 4 but dismissed under section 12. The Employment Tribunal lacked jurisdiction over the employment claim but had jurisdiction to determine the qualifying-body claim. Clarke LJ delivered the judgment of the court.

2. For employment within sections 4 and 78 of the Race Relations Act 1976, the court must identify the contracting parties, decide whether the contract obliges a contracting party personally to carry out work or labour, and, if so, decide whether personal performance is the contract’s dominant purpose. The agreement must be considered as a whole.

   The solicitor would have been a contracting party, but the contract imposed no obligation on her personally to perform the legal work. Its description as personal prevented assignment and subcontracting; it did not prevent performance by personnel and approved representatives. Legal responsibility for the work did not amount to an obligation to perform it personally. Nor was she contractually required to remain the franchise representative or supervisor, because substitutes could be appointed by notification.

   Even if those roles imposed some personal duties, personal execution was not the dominant purpose. The contract’s essence was to enable the provision of publicly funded legal services to clients in accordance with the Commission’s standards.

3. Section 12 applied because the Commission was a public body expressly empowered to accredit providers of publicly funded legal services. Granting a franchise authorised the franchisee to display the relevant logo and to perform publicly funded work. It conferred a meaningful professional status and was more than the selection of an already qualified professional to provide services to the body itself.

   The statutory alternatives “needed for” and “facilitates” are disjunctive. Facilitation means making engagement in the profession easier or less difficult, and engagement includes carrying on the profession. The franchise met that standard because access to publicly funded work materially assisted the practice of the profession.

4. Although the certificate related to an office, the contractual requirements had to be met continuously by the applicant contractor. The authorisation was therefore conferred on the sole practitioner personally for the purposes of section 12(1)(a) and arose from her application for the purposes of section 12(1)(b).

1. Court of Appeal (Civil Division): By [2003] EWCA Civ 1558, allowed the Commission’s appeal on section 4 of the Race Relations Act 1976 and dismissed it on section 12.
2. Employment Appeal Tribunal: Reversed the Employment Tribunal and held that it had jurisdiction under both sections 4 and 12.
3. Employment Tribunal: Held that it lacked jurisdiction under either section 4 or section 12.