Practice and Procedure


PUBLISHED November 11, 2003

An employment tribunal had jurisdiction under s.12 Race Relations Act 1976, but not under s.4 of the Act, to consider a claim alleging racial discrimination in connection with a sole practitioner's unsuccessful application to the Legal Services Commission for a legal aid franchise.Appeal by the Legal Services Commission ('the LSC') from the decision of the Employment Appeal Tribunal ('the EAT') that an employment tribunal ('the ET') had jurisdiction under s.4 and s.12 Race Relations Act 1976 to consider a race discrimination claim brought by the respondent ('P'). P was of black Afro-Caribbean origin and was the sole principal in a firm of solicitors. As a provisional legal aid franchisee, her firm had a one-year general civil contract by which the LSC contracted with service providers to provide legal services. However, the firm failed a pre-franchise audit with the result that it was not given a three-year general civil contract. In a claim before the ET, P alleged race discrimination in connection with her application to the LSC for a legal aid franchise. The EAT held that the general civil contract was a "contract personally to execute any work or labour" within the meaning of "employment" in s.78 of the Act. The alleged discrimination was therefore held to be "in relation to employment" for the purposes of s.4. In relation to P's s.12 claim, the EAT held that as P was a sole practitioner, the Legal Aid Franchise Quality Assurance Standard facilitated her practice as a solicitor. It was therefore unlawful, as P contended, to discriminate against her on racial grounds under s.12(1)(a), in the terms on which the LSC was prepared to confer authorisation, and under s.12(1)(b), by refusing or deliberately omitting to grant P's application for the franchise.HELD: (1) P was a party to the one-year contract and thus would have been a party to the three-year contract if the LSC had been willing to offer her one. However, the contract as a whole did not impose any personal obligations on P as the contractor personally to carry out the work. Under the contract P was wholly responsible legally for the work, but she was not obliged to carry it out personally. There was no requirement in the contract that P would be the franchise representative or supervisor. Accordingly the LSC's appeal in relation to s.4 was allowed. The ET had no jurisdiction to consider P's claim under s.4. (2) The EAT was correct to hold that the ET had jurisdiction to consider P's claim that she was discriminated against contrary to s.12(1) of the Act. The LSC was a public body charged with public functions. When it granted a franchise to a solicitor on the ground that the quality assurance standard had been satisfied, it granted an authorisation to display the logo. Since the grant of a franchise was a pre-condition to the making of a three-year contract, it could be said to be conferring on the franchisee an authorisation to perform publicly-funded legal services for its clients. The authorisation "facilitates engagement in" the profession of solicitor by making the carrying out of the profession by the franchisee easier. The franchise was conferred on P as the applicant and it followed that the authorisation was conferred on her within the meaning of s.12(1)(a) and that it was her application within the meaning of s.12(1)(b).Appeal allowed in part.

[2003] EWCA Civ 1558