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Loughran and Kelly v Northern Ireland Housing Executive [1998] IRLR 593 (HL)
The House of Lords decisions in Loughran and Kelly v Northern Ireland Housing Executive sets new boundaries for the scope of discrimination law. It may also raise the prospect of new legislation such as the National Minimum Wage and the Working Time Regulations protecting wider categories of workers.
The case was brought under the Fair Employment (Northern Ireland) Act which defines "employment" by reference to "a person employed under a contract of service or of a apprenticeship, or a contract personally to execute any work or labour". Similar provisions are contained in all UK discrimination statutes, the draft National Minimum Wage Regulations and the Working Time Regulations, although those provisions do not apply to workers operating as a profession or trade.
Mr Loughran, a sole practitioner solicitor, and Mrs Kelly, a partner in a larger firm of solicitors, were turned down for inclusion on a panel of solicitors maintained by the Housing Executive. They claimed that they had been discriminated against on grounds of their religious belief or political opinion.
The question to be determined was whether or not the definition of "employment" was wide enough to cover their situations whereby each would have been providing services to the Housing Executive, either as a sole practitioner, or through a firm.
The House of Lords had no difficulty in finding that Mr Loughran would have been "employed" for the purposes of the Fair Employment Act. However, they also found that Mrs Kelly could bring a claim in her own name, and her firm was probably also entitled to claim that it had been discriminated against.
The House of Lords reaches this conclusion by deciding that a "person" includes a partnership, so a partner was seeking to enter into a contract personally to execute work and was entitled to pursue her claim for discrimination.
In theory, therefore, a partnership or an individual partner, can bring a claim that it, or he or she, has been discriminated against. It is possible, but unlikely, that a company would be in the same position.
The difficulty here would be that the company would be the contracting party, but it is difficult logically to describe work as personally executed by a company itself.
The definition of a "worker" in the Working Time Regulations and in the draft National Minimum Wage Regulations is, in any event, slightly different. A worker means an "individual" who might work on any sort of contract whereby he or she, the individual, undertakes to do or perform personally any work or services for another party to the contract. The term "individual" has been interpreted to include, for example, companies.
However, the definition does not apply to a situation where the other contracting party is a client or customer of any profession or business undertaking carried on by the individual. It may be possible to argue that a partner in a firm would be a qualifying "individual", but, in cases analogous to Loughran, they would almost certainly be contracting with a client or customer.
It seems unlikely, therefore, that, under the National Minimum Wage Regulations and the Working Time Regulations, self-employed, sole traders or partnerships would be protected. The case might, however, assist in, for example, the building industry where the sub-contracting workers may be forced to work through their own companies of which they are the only employees.