Appeal No. EAT/1320/01/SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	                   At the Tribunal
	           On 17 January 2003
             Judgment delivered on 21 February 2003

Before
HIS HONOUR JUDGE J McMULLEN QC
MR P A L PARKER CBE
MR H SINGH

MISS Y PATTERSON	APPELLANT

LEGAL SERVICES COMMISSION	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MS K MONAGHAN
(of Counsel)
Instructed by:
Commission for Racial Equality
St Dunstan’s House
201-211 Borough High Street
London SE1 IGZ	
For the Respondent	MR T CROXFORD
(of Counsel)
Instructed by:
Legal Services Commission
(Policy & Legal Dept)
85 Gray’s Inn Road
London WC1X 8TX	

HIS HONOUR JUDGE J McMULLEN QC
1	This appeal is about the interpretation and application of sections 4 and 12 of the Race Relations Act 1976 in connection with the grant of a franchise by the Legal Services Commission to a solicitor’s practice.  It is an appeal from an Employment Tribunal, Chairman Miss E J Potter, sitting at London Central on 10 August 2001, promulgated on 11 September 2001.  The Applicant and the Respondent were represented there and here by Counsel.  We will continue to refer to the parties as Applicant and Respondent.  

2	The Applicant is the sole principal in a firm of solicitors Patterson Sebastian & Co.  It is a firm only in the colloquial sense, and is not a partnership.  The Respondent is a statutory body, whose functions are described below, which include the administration of what is still universally called legal aid.  The Applicant claimed that she had been discriminated against on the grounds of race; breach of contract; and discrimination contrary to the Human Rights Act.  The Applicant is of black Afro-Caribbean origin.  In 1999 all the Applicant’s staff were of black Afro-Caribbean and Asian origin, including the administrative staff and volunteers.  

3	The Applicant submitted a bid for a franchise in certain categories of legal work in 1999, which she was granted to a limited extent following initial rejection.  Thereafter the Applicant claimed that she had been over-monitored and over-audited, and adverse terms were imposed upon her.  These matters constituted unlawful race discrimination.  The Respondent denied discrimination and took jurisdiction points relating to sections 4 and 12 of the Race Relations Act 1976.  The Tribunal considered these matters as preliminary issues, relating to jurisdiction.  It decided that it did not have jurisdiction under either section.  In deciding those issues, it is common ground that the Tribunal was considering questions of mixed fact and law.  It heard live evidence and considered contractual documents.  It is against those two decisions that the Applicant appeals.  
4	The issues on appeal can be summarised as follows: whether the contractual relationship between a solicitor and the Legal Services Commission falls within section 4, and/or section 12 of the Act.  This involves discussion of the meaning of the word “person” in each of those sections, and of the nature of a qualification or authorisation under Section 12.  The appeal is supported by the Commission for Racial Equality and it and the Legal Services Commission indicate that the issue involved here is of importance to both of them,  since similar provisions apply in the Sex Discrimination Act 1975, the Disability Discrimination Act 1995 and the Fair Employment (Northern Ireland) Act 1976.  The interpretation we give may affect constructions of those statutes, although we say at once that we may not meet the ambition of the parties in obtaining a ruling which might apply to firms of solicitors in the proper sense.

The legislation
5	The legislative framework in which this case arises is the subject of uncontroversial findings by the Employment Tribunal.  The Respondent makes contracts with service providers to provide legal services.  A Legal Aid Franchise Quality Assurance Standard (“LAFQAS”) requirement is the means by which the Commission begins to award a franchise to service providers under its statutory power in section 4(8) of the Access to Justice Act 1999.  LAFQAS standards must be met by the provider in each area of law where a franchise is sought.  A provider must satisfy LAFQAS to become a franchisee, and accordingly, receive public funds for the provision of legal services through the public support scheme.  LAFQAS is predominately organisational in character, by which is meant that it applies primarily to organisations, but it is dependent upon having a duly qualified individual or individuals in the organisation.  The effect of not meeting a LAFQAS requirement can be detrimental to individual professional standing.  A General Civil Contract is awarded by the Commission to a provider.  This contract requires that there should be a supervisor in each franchised area of law, and requires each provider to have a franchise representative.  
6	The Access to Justice Act 1999 provides in relevant part:
“1 (1)  There shall be a body known as the Legal Services Commission …..
  (2)  The Commission shall have the functions relating to -
(a) the Community Legal Service, and 
(b) the Criminal Defence Service 
	which are conferred or imposed on it by the provisions of this Act or any other enactment. 
…
3  Powers of Commission
(1)  Subject to the provisions of this Part, the Commission may do anything which it considers -
(a) is necessary or appropriate for, or for facilitating, the discharge of its functions, or 
(b) is incidental or conducive to the discharge of its functions.  
(2) In particular, the Commission shall have power -
(a) to enter into any contract,
…..
4.  Community Legal Service
(1)  The Commission shall establish, maintain and develop a service known as the Community Legal Service for the purpose of promoting the availability to individuals of services of the descriptions specified in subsection (2) and, in particular, for securing (within the resources made available, and priorities set, in accordance with this Part) that individuals have access to services that effectively meet their needs.  
(2)  The descriptions of services referred to in subsection (1) are -
(a) the provision of general information about the law and legal system and the availability of legal services,
(b)  the provision of help by the giving of advice as to how the law applies in particular circumstances,
….
(5) The Commission shall fund services of the descriptions specified in subsection (2) as part of the Community Legal Service in accordance with the following sections…..
(7) The Commission may set and monitor standards in relation to services of the descriptions specified in subsection (2).
(8) In particular, the Commission may accredit, or authorise others to accredit, persons or bodies providing services of the descriptions specified in subsection (2); and any system of accreditation shall include provision for the monitoring of the services provided by accredited persons and bodies and for the withdrawal of accreditation from any providing services of unsatisfactory quality.”

The vehicle for the discharge of the above function is accreditation by a franchise through the requirements of LAFQAS.

7	The Race Relations Act 1976 in relevant part, provides as follows:

“ 1 Racial discrimination
(1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if - 
(a) on racial grounds he treats that other less favourably than he treats or would treat other persons; or
(b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but -
(i) which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and 
(ii) which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied; and 
(iii) which is to the detriment of that other because he cannot comply with it.  
4. Discrimination against applicants and employees
(1)  It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against another - 
(a) in the arrangements he makes for the purpose of determining who should be offered that employment or 
(b) in the terms on which he offers him that employment, or 
(c) by refusing or deliberately omitting to offer him that employment
(2)  It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee - 
(a) in the terms of employment which he affords him; or 
(b) in the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or
(c)  by dismissing him or subjecting him to any other detriment.
12  Qualifying Bodies
(1)  It is unlawful for an authority or body which can confer an authorisation or qualification which is needed for, or facilitates, engagement in a particular profession or trade to discriminate against a person -
(a) in the terms on which it is prepared to confer on him that authorisation or qualification; or
(b) by refusing, or deliberately omitting to grant his application for it; or 
(c) by withdrawing it from him or varying the terms on which he holds it.  
(2)  In this section -
(a)  “authorisation or qualification” includes recognition, registration, enrolment, approval and certification; 
(b) “confer” includes renew or extend.

78 General Interpretation provisions
(1)  “employment” means employment under a contract of service or of apprenticeship or a contract personally to execute any work or labour, and related expressions shall be construed accordingly;”

8	Sections 4 and 12 fall within part II “Discrimination within the employment field”.  Discrimination in relation to goods and services and in other fields is contained in part III, where also is to be found section 19B, inserted by the Race Relations (Amendment) Act 2000 which provides as follows
“19(b) it is unlawful for a public authority in carrying out any functions of the authority to do any act which constitutes discrimination”

The Respondent is a public authority.  These provisions were inserted in order to address the concerns expressed by Sir William MacPherson of Cluny and his committee in the report “The Stephen Lawrence Enquiry” CM4262-I 1999.  Because the Respondent drew attention to alternative remedies which may be available to the Applicant, e.g. by judicial review in respect of her complaint, Ms Karon Monaghan, Counsel for the Applicant, volunteered, very properly, that her client had a claim under part III which is justiciable in the County Court and such a claim does not overlap a claim covering the same territory in the employment field.  That claim is stayed presently.

9	There is no definition of “person” in the Race Relations Act or the Access to Justice Act.  However, the Interpretation Act 1978 defines “person” as “including a body of persons corporate or unincorporate”: see Schedule 1.  Section 5 provides:
“In any Act, unless the contrary intention appears, words and expressions listed in Schedule 1 to this Act are to be construed according to that Schedule.”

10	In construing the above sections, we have regard to the principle that an Act passed to remedy the “very great evil” of racial discrimination should be given a broad interpretation: see Savjani -v- IRC [1981] QB 458 at 466 at 467; Jones -v- Tower Boot [1997] ICR 262 CA per Waite LJ.
The Applicant’s practice
11	The Applicant’s firm consisted of the Applicant as sole practitioner and principal, five qualified fee earners, two trainee/para legals and two administrative staff.  She set her firm up in January 1997.  In her witness statement she said:
“The firm was born of a desire to serve the local community by contributing to publicly funded legal services mainly in housing, immigration, welfare benefits and family law”
At the relevant time 98% of the firm’s work was publicly funded.  The firm is located in what the Tribunal described as a “deprived area of Wembley”, which is in the London Borough of Brent.  Without a general civil contract, the Applicant told the Tribunal that her firm would no longer be able to do publicly funded work, which would result in the closure of the firm.  A firm without a franchise is not attractive because potential staff want continuity of employment and the opportunity for development and enhancement of their careers, which would not be obtainable from a small non-franchised firm.  The Tribunal found that not having a franchise is detrimental to individual professional standing, in other words as a solicitor.  The Tribunal found that the firm was suffering from the “irregular limbo position” of not having a franchise, and was having recruitment problems.  

12	The Tribunal pointed out the public policy considerations behind the application.  It noted that the Respondent’s own findings showed that the success rate amongst applicants for a franchise with an ethnic origin was low, and that the success rate was particularly low among Afro-Caribbean organisations.  Approximately £1.2 billion was spent by the Respondent in 2000 -2001 on services provided through the CLS and CDS.  
13	The road to a successful franchise is paved with obstacles, no doubt all in the public interest.  The Applicant was required to undergo three audits: these are a desktop audit, a preliminary audit and a pre-franchise audit.  The Applicant failed the pre-franchise audit, and thus had a one-year contract. At that time (but not now) the fees payable by the Respondent to the Applicant were lower than they would have been on a three year franchise.  In order to obtain a franchise, LAFQAS had to be satisfied.   LAFQAS has recently been re-named Specialist Quality Mark.  LAFQAS is an integral component of the general civil contract.

The Applicant’s contract  
14	The Applicant’s essential claim is that as a result of race discrimination obstacles were placed in her way, so that she did not yet attain a franchise.  It is important to look at the contract which was in place and which gave rise to the allegations of discriminatory treatment, by way of auditing and over-monitoring.  Its language is demotic, so that the terms “you” and “us” are frequently used; “you” is defined as “the contractor which has entered into this contract with us”.  The contract is to be signed between the Respondent and, on behalf of Patterson Sebastian & Co, by Ms Patterson.  The legend provides this:

“This Contract must be signed for you by a person who can bind you to this Contract.  If you are a partnership a partner must sign.  If you are a sole practitioner solicitor, the sole practitioner (principal) must sign.  If you are a company, a Director must sign.”
It is made clear by clause 2.6 that:
“This Contract is personal to you.  You must not give, bargain, sell, assign (or otherwise dispose of) the benefit of any of its rights, or sub-contract (or otherwise delegate) any of your obligations …..”

It is a condition of the contract that the provider should meet and abide by LAFQAS.  This contains the quality assurance standard.  Failure to comply would lead to a notice to terminate: see Clause 20.9.  

15	The Respondent’s evidence was that it discharges its duty under the statute by making contracts with organisations.  These are either solicitors’ firms or not-for-profit organisations.  But reading the contract strictly, the provider is not required to be an individual, notwithstanding the Tribunal’s finding that:
“a general civil contract is awarded to a firm, not to an individual ……”
Reasons: paragraph 3(vii).  This finding is to be contrasted with that at Reasons paragraph 3(iii):
“The Commission makes contracts with service providers, firms of solicitors and not-for-profit organisations…”
The practice would generally be to establish relations with organisational bases, but as we have shown, a sole practitioner can be awarded a general civil contract.  The service provider must inform the Respondent of constitutional and other changes which might affect the service provider, including specifically any change of key personnel: see clause 18.1.  The Applicant was defined as “Key Personnel”; she was the supervisor required to be named in the contract, and she was also the franchise representative.  Definitions include the following:

“ “Key Personnel” means all franchise representatives and supervisors under LAFQAS” 
[Clause 1.2]

16	Ms Monaghan submitted, without objection from Mr Croxford counsel for the Respondent, that the supervisor in the contract is required actually to perform certain duties, for which there is remuneration.  Since this appears before us to be common ground, we will adopt it in preference to the Tribunal’s finding that the Applicant:

 “….is not required to participate in any way in the operation of the franchise”
[Reasons paragraph 6, page 7]
The Tribunal heard a submission that because the Applicant was in reality supervisor and franchise representative, she was personally engaged.  The Tribunal, however, said this:
“Although the Tribunal was sympathetic to the reality of this position they concluded that in determining whether they had jurisdiction they had to look at the matter in a more detached manner.”
[Reasons paragraph 6, page 7].
Sadly, there are cases where application of the law is unrealistic.  But we would wish to scrutinise very carefully any decision by an Employment Tribunal, with its unique tripartite constitution, which is admitted to be detached from reality.  As we will try to demonstrate, reality and correct application of the law coincide in this case on appeal and result in findings in favour of the Applicant under both of the sections.  
Section 4
17	Section 4(1) of the Race Relations Act 1976 makes it unlawful for a person to discriminate against another in the context of employment.  By the grammatical technique of elision, the word “person” can be implied to follow the word “another”.  By section 4(2) the victim of the discrimination is described as “that employee” and as “him” in the examples.  Because of the expanded definition of “employment” and expressions related to it, it is possible to construe “another”, “a person employed by him”, “that employee” and “him” as the person, first referred to in section 4(1).  

18	The Interpretation Act construes “person” as including natural persons and bodies, corporate or unincorporate.  Generally speaking, anti-discrimination statutes define the victims of discrimination by reference to a particular characteristic.  It is thus unlawful to discriminate against a woman, a man, a married person, a person whose individual circumstances constitute him or her as a disabled person, a part-time worker, a fixed term employee, and those undergoing gender re-assignment.  Similarly, employment protection applies to employees who have a particular status or are conducting particular activities: trade union members, employee representatives, pregnant workers, mothers, natural or adoptive parents and persons performing public duties.

19	In Rhys-Harper -v- Relaxion Group PLC [2001] ICR 116, 1183, para 15 (judgment awaited on appeal to the House of Lords) Pill LJ said that provisions of the Sex Discrimination Act and the Race Relations Act should be construed in the same way, although a slightly different approach may be necessary by reason of the effect of the Equal Treatment Directive on the former Act.  Taking that approach, the “person” in section 4 of the Race Relations Act would be construed as a natural person only.  

20	The problem which arises in the present case did not arise in Rhys-Harper,  and in our judgment, a different approach to the Race Relations Act from that enjoined in any of the other anti-discrimination measures is justified by the different basis upon which discrimination is outlawed.  Generally speaking, the victim of discrimination will be a person of a particular racial group, but need not be.  This is because unlawful discrimination is action taken “on racial grounds”, so a white person instructed to carry out an unlawful discriminatory policy can complain of racial discrimination: Weathersfield Ltd -v- Sargent [1999] IRLR 94 CA.  

21	Similar language is used in the Fair Employment (Northern Ireland) Act 1976 where discrimination is made unlawful on the grounds of religious belief and/or political opinion.  In In re Northern Ireland Electricity Service’s Application [1987] NI 271, a company complained that it had been refused a tender for work because of discrimination on the ground of religious belief or political opinion, since the unions on the site refused to work with the company’s employees, the unions believing them to have IRA sympathies.  As Lord Slynn observed in Kelly -v- Northern Ireland Housing Executive, Loughran -v- Northern Ireland Housing Executive [1999] AC 428, 436, to which we shall return in a moment, Nicholson J, who decided In re Northern Ireland Electricity Service’s Application:

“did not find it necessary to decide whether a body corporate could have a religious belief since it was enough that it should be discriminated against on the ground of the religious belief of its employees.”

22	Without resolving the issue of whether a corporation can be a victim, for present purposes it is sufficient for us to indicate that it is not necessary for a victim complaining of direct race discrimination to identify his or her membership of any particular racial group.  It may be for a person complaining of indirect discrimination, since the language of section 1(1)(b) requires comparison between members of different racial groups. We do not have to decide this, and it is clearly arguable that a company can have a national origin, and its members may all share the same racial group. Greater protection against discrimination is therefore given by the Race Relations Act and the Fair Employment Act than is provided under the Sex Discrimination Act and measures protecting part-time workers and fixed-term employees.  The position of disabled persons is slightly different because there is no specific class of disabled persons, and a straightforward comparison of this particular provision may be inapt.  

23	In Kelly and Loughran, the House of Lords considered two appeals from the Northern Ireland Court of Appeal under the Fair Employment Act.  With only slight differences, sections 17, 23 and 57(1) correspond to the Race Relations Act sections 4, 12 and 78(1).  The Northern Ireland Housing Executive is the public housing authority for Northern Ireland.  It sought applications from solicitors to go on a panel of solicitors who would be appointed to defend the Executive in claims brought against it for its public liability.

24	Lord Slynn noted at page 433 that:
“All “firms” of solicitors in Northern Ireland were again invited to apply …..”
Lord Slynn used the term “firm” advisedly throughout his judgment because he drew a distinction between a partnership in its proper sense, and a “firm” which is a sole practitioner.  It seems to us that he was giving effect to the long-standing convention which treats even a sole practitioner as a firm; and sometimes sole practitioners like Ms Patterson adopt a collective or plural proper name for their practice. The Respondent (and no doubt the Applicant’s clients) referred to the firm as Pattersons. This does not affect the legal reality that, in England and Wales and Northern Ireland (but not Scotland) individual partners in a firm are the ones who are liable for any contract made on behalf of the partnership, and the firm has no separate legal  identity from the partners: see Lord Lloyd at page 445.  Mr Loughran practised as “Oliver M Loughran & Co”, where he was the sole proprietor and principal, although he employed an assistant solicitor.  Mrs Kelly practised in a two-person partnership as “John Hoy, Son & Murphy”.  Lord Slynn noted that the Court of Appeal had held that although Mr Loughran described his business as a firm, he was still a sole practitioner:
“in substance he was therefore seeking to have himself appointed to the panel.  He designated himself as the solicitor who would be mainly concerned with the work to be done for the executive.”
Lord Slynn went on to hold that the definition of employment in the Fair Employment Act was wide enough to cover the provision of services by a professional person.
“Whatever he calls himself, he was the individual seeking employment in the sense of someone offering to enter into a “contract personally to execute any work or labour”.  He was the person undertaking to do the work and he would be liable for any breach of contract that was made …..The dominant purpose is that he will do the essential part of the work.”
Lord Steyn agreed with Lord Slynn - page 447  - and Lord Griffiths, giving his own reasoned judgment came to the same conclusion as Lord Slynn: page 442.  Lord Lloyd of Berwick and Lord Clyde dissented.

25	The Employment Tribunal in the instant case distinguished Loughran’s case on the facts. It held that the “dominant purpose”, a phrase submitted by Mr Alexander Irvine QC and adopted by Lord Justice Balcombe, in Mirror Group Newspapers Ltd -v Gunning [1986] IRLR 27 at paragraph 36, was not that Ms Patterson was personally to carry out the work or labour which formed the subject matter of the General Civil Contract.  Lord Justice Balcombe in that case said:
“In my judgment, one has to look at the agreement as a whole, and provided that there is some obligation by one contracting party personally to execute any work or labour, one then has to decide whether that is the dominant purpose of the contract, or whether the contract is properly to be regarded in essence as a contract for the personal execution of work or labour, which seems to me to be the same thing in other words.”

26	In the case itself, a claim of sex discrimination by the daughter of an independent newspaper distributor that Mirror Group had refused to carry on the contract when she took it over from her father, failed because there no obligation upon her to do any of the work.  A similar result was achieved in Tanna -v- The Post Office [1981] ICR 374, EAT,  Mr Justice Slynn there saying at 377:
“……,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.”

27	The Tribunal in our case noted that the Northern Ireland Housing Executive was appointing solicitors to represent itself in legal proceedings, whereas the Legal Services Commission appoints Ms Patterson’s firm to do work on behalf of clients who need legal services.  Mr Loughran was required personally to defend the Executive in claims made against it, whereas Ms Patterson had no obligation to advise any particular client.  In our judgment, the majority judgment in Loughran’s case is directly applicable to our case, once it is recognised (a) that the reality of the situation is that Patterson Sebastian & Co is the alter ego of Ms Patterson; and (b) that she had to perform functions for which she was remunerated at least as the franchise supervisor.  

28	We reject the submission made on behalf of the Commission that the dominant purpose of the contract is the discharge of the Commission’s duty, under section 4 of the Access to Justice Act 1999.  Of course, in a general sense, everything it does is designed to discharge its duty to provide a community legal service (in the civil jurisdictions). But as to this particular contract, the dominant purpose was to ensure that the person who signed the contract, Ms Patterson, nominating herself as the supervisor and franchise representative, carried out the duties attached to those particular functions herself, and saw to it that legal services were provided in the name of her firm by those persons employed by her.  She was, as the contract describes her, a member of the “Key Personnel” and could not change that status without consultation and agreement with the Commission.

29	Given, as we see it, the direct application of Loughran’s case to the instant case, it is not necessary for us to deal with the way the House of Lords treated Ms Kelly’s case - she being half of a two-person partnership - or with the status of a corporation.  But it seems to us that the majority judgment of Lord Slynn, Steyn and Griffiths would be applied if Ms Patterson were in a two-partner firm, provided at least one of them had to discharge some duties under the franchise. There can be no reason why race discrimination should be outlawed for a sole practitioner but go unchecked if the franchisees are in partnership. The appeal on section 4 of the Race Relations Act is allowed: Ms Patterson is within the protection.  

Section 12
30	The Tribunal decided that the award of a franchise by the Legal Services Commission under the statutory accreditation power in section 4(8) of the Access to Justice Act was an authorisation or qualification for the purposes of section 12 of the Race Relations Act.  But it concluded finally, against the Applicant, that the award of LAFQAS and the award of a franchise “were not sufficiently personal in character to come within section 12”.  The section required a qualification or authorisation to have a clear personal dimension if the individual was to be enabled to ague that its withholding was an act of discrimination protected by Part II of the Act.  

31	The Tribunal did not feel able to take the bold step of finding that “person” in this context should be interpreted to include a partnership, other incorporated body or limited company, (paragraph 6, page 9).  It acknowledged that the judgment of the House of Lords in Loughran and Kelly was not of assistance.  On this point a unanimous House rejected both Mr Loughran’s claim and Ms Kelly’s.  Lord Slynn said this at page 440:
“I agree that the wording of the Fair Employment (Northern Ireland) Act 1976 is wider than that of the Race Relations Act 1976 and that the emphasis on “status” in [Department of the Environment for Northern Ireland -v- Bone [1993] 8 NIJB 41] may be subject to further argument, though the word “status” may give some indication of the essence of a “qualification”.  I am however satisfied that “qualification” as defined does not cover the appointment of a duly qualified professional man to carry out remunerated work on behalf of a client, however prestigious the client.  If it were otherwise the appointment of a City firm of solicitors by a large United Kingdom company or a multinational would amount to the grant of a qualification just as it would to the appointment of a firm by a non-governmental public authority.”

The word “qualification” in the Northern Ireland statute includes “authorisation” as it does in the Race Relations Act  - see sections 57(1) and 12(1) of the respective Acts.  

32	The former is plainly wider since it covers his engagement in employment in any capacity or in any particular employment or occupation.  Ms Monaghan stressed the use of the word “trade” in the Race Relations Act in support of her argument for a wide approach.  We doubt whether that is a significant distinction.  We are bound, in any event, by what Lord Slynn found, and there is no doubt that Ms Patterson in this case is engaged in a learned profession and not, as they used to say, in trade.  We think “engagement” is apt to include both the initial qualification to start up, in this case, the practice of a solicitor, and also the right to continue in practice.  So, in ordinary language, the person who wishes to engage in the profession of solicitor must obtain the qualification necessary to be entered on the Roll, and the authorisation of a practising certificate.  She can then embark upon the practice and continue to engage in it.  

33	That proposition was accepted by the Tribunal in the instant case and distinguished from a general kitemark such as the award of Investors in People to an organisation.  It found that the award of LAFQAS and the franchise fell somewhere in the middle.  In our view, Kelly and Loughran is distinguishable from the present circumstances.  The crucial distinction is in the triangular relationship between the Legal Services Commission, Ms Patterson’s firm and the public.  A further distinction is the nature of the Commission, with a statutory duty to provide for legal services to be offered by others, and the Northern Ireland Housing Executive, which like any other large body, would feel it prudent to have access to solicitors to defend it to have been carefully chosen in open competition and who understood the needs of the client itself.  

34	It is important to note how the Commission regarded itself in its Notice of Appearance before the Employment Tribunal, presented on 7 March 2001, at paragraph 13:
“The General Civil Contract merely permits a firm of solicitors holding it to perform publicly funded work.  It does not require the firm to perform any quantity of work at all.  It operates as a form of licence (by the Legal Services Commission) to perform publicly funded work. “
A licence is defined in the OED, in its first ordinary sense. as a 
“a formal permission from a constituted authority to do something eg … to carry on some trade, etc; a permit”
The Commission’s self description is apt.  It gives reassurance to vulnerable people in the community, seeking legal assistance who, by background, would have no judgment about firms of solicitors, and who would not have the advantage, from being in a trade union or self-insured in respect of legal claims, that the firm they are consulting has passed the relevant statutory tests.  The Commission called, as a witness, Mr Simon Morgans, who drafted the General Civil Contract, and he said:
“Organisations that want a contract must comply with LAFQAS and must continue to comply with it while they hold the contract…..”
Franchising is the “accreditation” process referred to in section 4(8) of the Act.  The Commission may award these (LAFQAS) Special Quality Marks to any organisations, providing service within the CLS, whether or not they receive payment for any work from the Commission - for example, Citizens Advice Bureaux and Consumer Advice Departments of County Councils.  

35	The Tribunal found that:
“LAFQAS ……is not merely a requirement for doing publicly funded legal work, it is also a freestanding proof of professional standards attained” 
(Reasons paragraph 6, page 8)
The standards to be met under LAFQAS are organisational, but the attainment of the standard by a firm consisting of a sole practitioner and principal is in reality a recognition of that person’s attainment.  She herself cannot perform publicly funded legal work unless the firm in which she is engaged has passed the LAFQAS standard and has been given a franchise.  Thus, the Commission assures itself that the LAFQAS standard has been met by its own internal rigorous systems, and then advertises to the world in the form of a franchise, that it has accredited a firm as being responsible enough to do publicly funded legal work.  It is thus a state monopsony: there are many sellers of legal services of which it is the sole buyer.

36	Within the terms of section 12(1), we cannot say that LAFQAS or a franchise are “needed for” engagement in the particular profession which we hold to be that of solicitor. However, on the facts of this case, it certainly “facilitates” the entry into and continuing in practice of a person who wishes to practise in this deprived area of London.  Facilitates means makes easy or easier. In BJA -v- Petty [1981] ICR 660 at 663 -4 EAT, Browne-Wilkinson P, held that a qualification or authorisation which “in fact” facilitates the holder’s trade or profession falls within section 12, whether intended or not.  Without a franchise, the evidence was that Ms Patterson’s firm would close.  

37	In Sawyer -v- Ahsan [1999] IRLR 909 EAT, Lindsay P held that being a councillor or a Labour Party councillor is a profession or an occupation and that Labour Party approval was “needed” for engagement in that occupation.  A Tribunal dealing with a complaint by a person seeking Labour approval therefore had jurisdiction under section 12.  The decision was based on the words “needed for” and not upon “facilitates” which “troubled” the EAT.  In any event, Sawyer was overturned by Triesman -v- Ali [2002] IRLR 399 on the grounds that the Labour Party was not the type of qualifying body to which section 12 applied.  The Court of Appeal held that no status, in any meaningful sense, was conferred when a person was approved to go into the pool of candidates available for selection in Local Government elections.  

38	In our view, Triesman has no application to the circumstances of the instant case which involves a statutory body conferring accreditation pursuant to its statutory duties on a professional firm which, in the public interest, meets the need for publicly funded services, in particular subjects and particular areas of London. 

39	It is noted that the Tribunal found against the Applicant’s case since the LAFQAS standard and franchise were not sufficiently personal.  But given the reality that the Applicant was a sole practitioner, they did indeed facilitate her practice in that field. As the Tribunal acknowledged, the franchise had a “clear personal dimension” (Reasons paragraph 6) because the personnel identified were subject to scrutiny, approval and monitoring (paragraph 3(vii) and (viii)).  The relevant personnel in this case was the Applicant.  

40	Insofar as the Tribunal found partly in favour of the Applicant’s submission, in concluding that the franchise was in the nature of an authorisation or qualification, Mr Croxford takes issue.  From what we have indicated above, we uphold the initial approach of the Employment Tribunal and uphold the Applicant’s claim that she is within scope of section 12. 

Other grounds of appeal
41	It is necessary for us to deal only with two subsidiary matters in Ms Monaghan ‘s argument.  She complained that the Tribunal had not given adequate findings: Meek -v- Birmingham DC [1987] IRLR 250 CA.  We disagree.  The findings and reasoning of this Tribunal are pellucid.  

42	Secondly, Ms Monaghan, in her written argument, raised issues under the Human Rights Act 1998.  Mr Croxford reserved his position on the engagement of the ECHR and submitted a further supplemental Skeleton, once he had seen Ms Monaghan’s.  Ms Monaghan did not advance these arguments and said they were not at the forefront of her submissions, but did not abandon them.  In those circumstances, we did not call upon Mr Croxford to deal with them, and we say nothing further about them.  We wish to thank both advocates for the care with which they have argued this case.  

Disposal
43	Since the Employment Tribunal heard the matter as a preliminary point, we will remit the case to the same Tribunal, unless the Regional Chairman decides this is impracticable.  Nothing we have said should be taken to give any indication about the merits of the Applicant’s case or the Respondent’s response to it, which are all matters to be determined by the Tribunal.