Harrods Ltd v Remick [1995] UKEAT 397_95_1112

EAT

Harrods Ltd v Remick

[1995] UKEAT 397_95_1112 · 1995-12-11

MR JUSTICE MUMMERY (PRESIDENT) In what circumstances is a person liable to a complainant worker for discrimination in employment on the ground of race when that complainant is not employed by him under a contract of employment?

That is the question common to three appeals in which it is argued that Harrods Ltd are not liable for alleged race discrimination to two applicants (Ms Remick and Mrs Seeley) who were dismissed from employment by concessionaires operating at Harrods store under contracts with Harrods, and to a third applicant (Miss Elmi), who was refused employment by another Harrods concessionaire.

The Industrial Tribunals which heard these cases came to different conclusions -

(1) At the hearing of a preliminary issue on jurisdiction in the proceedings by Ms Remick and Mrs Seeley the Industrial Tribunal held at London (South) on 30th March and 19th June 1994 (in the case of Mrs Seeley) and on 15th September 1994 (in the case of Ms Remick) decided that the Tribunal had jurisdiction to hear the complaints of race discrimination against Harrods.

(2) At the full hearing of the claim made by Mrs Elmi at London (South) on 14th and 25th October 1994 and on 8th, 9th and 10th February 1995 the Tribunal decided that the complaint against Harrods Ltd should be dismissed, as Harrods were not liable for any discrimination on the ground of race suffered by Miss Elmi.

The main point in each appeal turns on the correct interpretation and application of S.7 of the Race Relations Act 1976 ("the 1976 Act") to workers who are not employed by Harrods. The section applies -

"(1) to any work for a person ("the principal") which is available for doing by individuals ("contract workers") who are employed not by the principal himself but by another person who supplied them under a contract made with the principal."

The section continues -

"...

(2) It is unlawful for the principal, in relation to work to which this section applies, to discriminate against a contract worker -

(a) in the terms on which he allows him to do that work; or

(b) by not allowing him to do it or continue to do it; or

(c) in the way he affords access to any benefits, facilities or services or by refusing or deliberately omitting to afford him access to them; or

(d) by subjecting him to any other detriment."

This section is in a group of sections in Part II of the 1976 Act (Discrimination in the Employment Field). Sections 4 to 9 inclusive are grouped by the side note "Discrimination by Employers".

As this is alleged to be a case of direct discrimination, S.1(1)(a) of the 1976 Act is relevant.

"A person discriminates against another in any circumstances relevant for the purpose 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 ..."

Preliminary observations on S.7 of the 1976 Act

Before examining the facts and arguments on each of the three appeals, it may help to highlight certain features of S.7.

A Contracts

For the section to apply to any given situation there must be three persons or class of persons -

(a) The principal;

(b) individuals (contract workers) employed by a person other than the principal, and

There must also be two types of contract -

(a) A contract of employment between the individual workers and their employer; and

(b) A contract made between the employer of the individual contract workers and the principal, under which the employer supplies the contract workers.

The supply must be pursuant to a contractual obligation to supply individuals to work: Rice v. Fon-a-Car

[1980] ICR 133

AT 136 D - H.

B Employment

In the 1976 Act "employment" has an extended meaning. According to the interpretation provisions in S.78(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."

C Work

Section 7 applies to "work" which must have two characteristics -

(1) It must be work "for " a person (the principal); and

(2) it must be work "which is available for doing by individuals ("contract workers")" who are not employed by the principal himself.

The issue is not whether the contract workers work for the principal. The issue is whether there is work for a principal which is available for doing by contract workers. The emphasis is on the characteristics of the work itself (ie that it is work for a principal and that it is work available for doing by contract workers), not on the actual doing of the work for the principal . The expression "work for " a person is not in the context of an employer/employee relationship. It is in a context which indicates the use of the ordinary meaning of "for", ie "for the benefit of".

The individual cases

A Ms Remick's case

Ms Remick's appeal is against the decision of the Industrial Tribunal held at London (South) on 15th September 1994. In Extended Reasons sent to the parties on 8th November 1994 the Industrial Tribunal explained why they had jurisdiction under S.7(1) of the 1976 Act to entertain her claim for racial discrimination presented to the Industrial Tribunal on 28th June 1994. By a Notice of Appeal served on 19th December 1994 Harrods appealed against that ruling.

In the Extended Reasons the following facts were found by the Industrial Tribunal.

(1) Ms Remick was employed as a pen consultant by Sheaffer Pens (UK) Ltd who have a sales counter in the Pen Department of Harrods.

(2) Ms Remick was recruited and employed to work at that counter as an expert in Sheaffer pens. She was employed with effect from 16th August 1993.

(3) Harrods buyer (Mr Hamlyn) made an oral agreement with Sheaffer giving them an exclusive counter area in the store. In return Sheaffer agreed on two of their employees to staff that counter. Ms Remick was one of the sales staff so employed by Sheaffer.

(4) The stock of pens sold on the counter were purchased from the suppliers by Harrods who were then able to fix a price at which the pens were sold in their store.

(5) The sales staff, including Ms Remick, prepared orders for replacement stock as the pens were sold, but these orders required the approval of the Harrods buyer before they were acted upon. The replacement stock was then purchased from the pen suppliers, including Sheaffer. The Tribunal stated (paragraph 4) -

"...Thus the sale of pens had a dual benefit, both for the supplier who would thereby be in a position to supply replacement pens to Harrods, and also to Harrods who took the benefit of the difference in the sale price of the pen from the price at which they had purchased it from the supplier. Sheaffer and other suppliers also benefitted from the ability to advertise that it sold its pens in a prestigious store with an international reputation."

(6) The employees of the concessionaires, such as Sheaffer Pen (UK) Ltd, were required to comply with a dress code which Harrods insisted on in order to maintain their reputation. A proper standard of appearance was required from staff working in the store. To the customer there is nothing to distinguish any employee of Harrods from any employee or consultant employed by the concessionaire.

(7) To enforce the dress code Harrods only permitted in the store those staff who were in the possession of store approval issued for a limited period. Failure to comply with the dress code resulted in automatic withdrawal of the store approval.

(8) Store approval of Ms Remick was withdrawn by Harrods on 13th April 1994, because she was considered to have failed to adhere to the dress code. On 30th April 1994 notice of termination given by Sheaffer on 28th April 1994 expired. She was paid one month's salary in lieu of notice.

(9) The documents in the agreed bundle include a concession/consultant form and a store approval form on Harrods headed paper and signed by Ms Remick. According to the concession/consultant form signed by Ms Remick and dated 16th August 1993, Mrs Remick agreed, while working in Harrods, to abide by Harrods regulations, as amended from time to time and contained in "Harrods and You", a current copy of which she had received and read. The form stated that Ms Remick understood that she was required to conform to certain requirements in relation to appearance, use of staff entrance and exit, the carrying of an identity card, observing Harrods staff shopping procedures and keeping to Harrods working systems, particularly those concerned with the handling of money.

(10) A 3 months Store Approval Form was signed by Ms Remick and dated 27th August 1993. (The approval was extended for a further month on 20th November 1993). It was also signed by the recruitment officer and training manager of Harrods Recruitment Department. Sheaffer Pens are identified in the document as the concession company/agency and the store department is stated to be pens/stationery. The Store Approval Form contains a confirmation by Harrods that approval has been granted for Ms Remick to work within the store in the concession of Sheaffer pens. It is stated that the approval is valid for three months from the date of the form and is subject to stated conditions. Ms Remick agreed to those conditions, which included a note at the end to the effect that -

"... If these conditions are not met and any of Harrods rules and regulations are not adhered to, store approval can be immediately withdrawn."

The conditions include a requirement to attend the Harrods induction training before going to the sales floor, the adoption of a professional approach to work and two particular conditions:

"5.1 I agree that during my employment within Harrods I shall keep all information whether confidential or otherwise, which belongs to or concerns Harrods, its shareholders, associated companies and all customers, which comes into my knowledge by reason of my employment, secret and confidential and shall not at any time for any reason whatsoever disclose or communicate such information to any other person.

5.2 I also agree when my employment within Harrods ceases, I shall keep all confidential information which belongs to or concerns Harrods, its shareholders, associated companies and all customers secret and confidential, and shall not at any time for any reason whatsoever disclose or communicate such information to any person. For the avoidance of doubt, without prejudice to the generality of the foregoing, I acknowledge that confidential information shall include any information relating to the Royal Family and their households and also any information relating to any well known personalities."

The Decision of the Industrial Tribunal

The Tribunal found in favour of Ms Remick on the preliminary issue of jurisdiction for the following reasons:-

(1) Harrods were a "principal" within the meaning of S.7 of the 1976 Act.

(2) Ms Remick was carrying out work for Harrods, even though not employed by them. That work was available to her and was performed by her for the benefit of Sheaffer pens and of Harrods. Benefit was derived by Harrods by virtue of the direct profit which they made on each pen sold by Ms Remick.

(3) Sheaffer Pens had a binding contract with Harrods. Under that contract Sheaffer Pens were under an obligation to supply labour to Harrods who obtained the services of those from whose sales activities they gained a direct profit on each pen sold.

B Mrs Seeley's Case

This appeal is from the decision of the Industrial Tribunal held London (South) on 30th March and 29th June 1994. As explained in the Extended Reasons notified to the parties on 19th July 1994, the Tribunal unanimously decided on a preliminary issue that they had jurisdiction to entertain Mrs Seeley's claim for racial discrimination by reason of S.7(1) of the 1976 Act. On 30th August 1994 Harrods served a Notice of Appeal.

The Industrial Tribunal found the following facts:-

(1) On 9th July 1992 Mrs Seeley, who is of Hindu origin, made an agreement with Brigade International Ltd ("Brigade") to work in Harrods as a cosmetics consultant selling Burberry Cosmetics. She had started work there on 6th April 1992.

(2) On 30th October 1992 she was given redundancy notice by Brigade with effect from 7th November 1992.

(3) On 6th November 1992, while still in the employment of Brigade, she was told by a Harrods Personnel Officer to remove a nose stud worn as an item of jewellery. Store approval for her was withdrawn and she was banned from working in Harrods.

(4) Brigade had entered into an agreement with Harrods under which Harrods exercised a considerable degree of day-to-day control over Mrs Seeley's working life. She was obliged to operate Harrods till procedure and clocking-in, and procedures over holiday dates and when she was away sick, though she was not an employee of Harrods. (Brigade had the right to transfer her from Harrods to another main London store).

(5) In the agreed bundle of documents there is a concession/consultant form signed by Mrs Seeley and dated 31st March 1992 which is in substantially the same form as the form signed by Ms Remick. There is another form similar to the Store Approval Form signed by Ms Remick. This form, which bears the Harrods name, is signed by their Recruitment Officer and Training Manager. The form is valid for one year and can be withdrawn if the conditions are not met or if any of Harrods rules and regulations are not adhered to. There are provisions for Harrods induction training and conformity to the business dress code.

(6) The agreed bundle of documents also contains a specimen of the concessionary licence agreement with Harrods.

Decision of the Industrial Tribunal

On the preliminary issue the Industrial Tribunal ruled in favour of Mrs Seeley for the following reasons:-

(1) Although Mrs Seeley was an employee of Brigade, and not of Harrods, according to the terms of the head agreement between Brigade and Harrods, Harrods regulated the manner in which Brigade placed staff in the premises. An integral part of the commercial relationship was the supply of contract workers, such as Mrs Seeley, to Harrods in the form of specialist perfume sales consultants.

(i) ) to -

"... ensure that the department is adequately staffed with suitably qualified employees. The Licensee shall be responsible for engaging all such employees who shall be employees of the Licensee and not of Harrods and the Licensee will be fully responsible for paying all the salaries and commissions and all National Insurance contributions, PAYE, graduated pensions and any other payments in respect of their employment."

The Licensee is also under an obligation (7 I(iii)) to ensure that -

"...all of its employees comply with the terms of the Staff Guide and all disciplinary and other regulations in effect from time to time. Harrods shall notify the Licensee of all such Regulations, and shall provide copies to the Licensee for distribution to its employees. The Licensee shall ensure that all of its employees wear Harrods' badges and supply such information to Harrods as Harrods may from time to time reasonably require."

The agreement also entitled Harrods to -

"object to any person in the Department without assigning any reason for such objection and upon receipt of such objection the Licensee shall cease to employ such person in the Department at the store. If, as a result of such objection, the Licensee terminates the employment of such person the Licensee hereby acknowledges that it shall be fully and solely responsible for any redundancy payments, awards for unfair dismissal or compensation for loss of office arising from such termination and the Licensee shall not seek to join Harrods as a party to any proceedings which may be instituted against it in respect of such termination. If Harrods is joined in any action with the Licensee in respect of such termination the Licensee undertakes to fully indemnify Harrods in respect of all costs (including legal fees), expenses, awards, loss or damages, which Harrods may incur, suffer or pay as a result of such proceedings."

(3) Staff in the position of Mrs Seeley were working " for " Harrods. Harrods purchased perfumes, or lines of perfume, wholesale from Brigade. Mrs Seeley used tills owned and operated under Harrods procedures. The perfume purchased became the property of Harrods. That perfume was sold by Mrs Seeley. The profit on the sale went to Harrods ie, the difference between the wholesale and the retail price. She was a sales person, doing work for both Harrods and Brigade. Section 7 of the 1976 Act did not require that the contract worker should do work only for the principal.

C Miss Elmi's Case

This appeal is from the decision of the Industrial Tribunal held at London (South) on 24th and 25th October 1994 and 8th, 9th and 10th February 1995. In the Extended Reasons notified to the parties on 10th April 1995 the Tribunal explained the reasons for their unanimous decision to dismiss Miss Elmi's claim. On 23rd May 1995 Miss Elmi served a Notice of Appeal.

In the Extended Reasons the Industrial Tribunal found the following facts.

(1) Moyses Stevens Ltd are florists with retail premises in the Harrods store under a concession or franchise from Harrods dated 23rd October 1992, subject to store approval for employees or prospective employees to work there..

(2) In January 1993 Mrs Elmi, who is of Black Caribbean origin, saw an advertisement for a vacancy for Saturday staff at Harrods in the floristry. On 21st January 1993 she had an interview with an employee of Moyses Stevens and was told of the process of store approval. A second interview was arranged for 22nd January 1993.

(3) Mrs Elmi was given an assurance of approval, but she was informed on 26th January that a decision was made that she should not be approved. Because of the refusal of store approval, Moyses Stevens could not employ Mrs Elmi.

(4) The agreement dated 23rd October 1992 between Harrods and Moyses Stevens contained these provisions:-

"3(A) The licensee shall operate the Department as an integral part of the business of the store under the "Harrods" name on the basis that:-

(1) in demonstrating and selling the goods to customers the Licensee shall act as an agent for Harrods;

(2) accordingly, all goods to be sold to cusomers pursuant to this agreement shall first be sold by the Licensee to Harrods; and

(3) the property in each item of such goods shall pass to Harrods immediately before it passes to the relevant customer but, as between Harrods and the Licensee each such item shall be at the risk of the Licensee at all times until it is at the risk of the customer ...

(B) The Licensee shall not inform or imply to any customer or third party that the department is or was operated as a business separate from that of Harrods or otherwise than by Harrods."

Clause 4. contains provisions that the Trade Mark and goodwill associated therewith was an asset of Harrods and any goodwill arising as a result of the Licensee's operation of the department other than Harrods name should accrue to Harrods and not to the Licensee. Clause 6. contains detailed provisions on prices and margins.

(I) includes a provision that -

"... the Licensee will, in operating the department and in all its dealings with customers of the department and the store, accept the policies, rules and regulations of Harrods and without limitations shall comply with all applicable requirements set out in the Manuals".

Clause 9. contains provisions about Staff including the following:-

"(A) The Licensee will ensure that the department is adequately staffed with suitable qualified employees ("Staff")."

The clause provides that the Licensee will be responsible for all such stafff who would be employed by the Licensee and not by Harrods and would be responsible for payment of salaries and so on.

(C) provides that -

"The Licensee will ensure that all of its staff attend Harrods' induction programme and comply with all applicable terms of the Manuals and all applicable disciplinary and other regulations of Harrods in effect from time to time, as though they were employees of Harrods, Harrods shall notify the Licensee for distribution to its staff. The Licensee shall ensure that all of its staff wear Harrods badges and supply to Harrods such information as Harrods may from time to time reasonably require."

Clause 9(D) provides -

"Harrods may object to the presence of any person as a member of staff in the department. Harrods shall notify the Licensee of its objection and upon receipt of such notice the Licensee shall forthwith procure that such person ceases to work in the department. The Licensee shall ensure that the terms of employment of its staff are such as to permit the Licensee to require its staff to cease to work in the department if Harrods objects to them and that accordingly no such objection by Harrods shall constitute any inducement or incitement to the Licensee to breach of contract."

There is also a provision, similar to that quoted in the case of Mrs Seeley, for an indemnity to Harrods against liability for actions against staff.

The Decision of the Industrial Tribunal

The Industrial Tribunal dismissed Mrs Elmi's case. It appears from the Extended Reasons that -

(1) There was no reliance at the hearing on S.7 of the 1976 Act. (There is a dispute as to whether a concession was made that it did not apply: we allowed the point to be argued on appeal as no further evidence is required)

(2) Reliance was placed on S.32(2) of the 1976 Act, but the Industrial Tribunal held that that provision did not cover this case. Section 32(2) provides -

"Anything done by a person as agent for another person with the authority (whether express or implied and whether precedent or subsequent) of that other person shall be treated for the purposes of this Act (except as regards offences thereunder) as done by that other person as well as by him."

(3) The Industrial Tribunal held that the store approval was a condition precedent to employment of staff by Moyses Stevens. Harrods had to agree. Whether Harrods agreed or not was outside the control of Moyses Stevens. The process was not equivalent to delegation by a principal to an agent.

(4) The Industrial Tribunal rejected the argument that Harrods were acting as agents for Moyses Stevens. The staff were not employees of Harrods. They were employees of Moyses Stevens, subject to the approval of Harrods. The Tribunal also rejected the contention that Harrods acted as an employment agency within the meaning of S.14 (That is not pursued on appeal)

(5) After considering the submissions of the parties the Tribunal concluded in paragraph 54 of their decision as follows:-

"...Although we have found that refusal of store approval by Harrods in the case of Mrs Elmi was an action in which they treated her less favourably on account of her race or colour, and therefore discriminated against her on racial grounds, that conduct on their part is not unlawful according to the law as it presently stands. This is a conclusion to which we are driven with the utmost reluctance and regret. In our view, such conduct should fall within the provisions of the Act given its overall purpose and structure. However, it is not for us to stretch the provisions of the Act to artificial limits so as to overcome our reluctance."

As regards Moyses Stevens, the second Respondents to Mrs Elmi's claim, the Tribunal found that they had not acted in any way which could be described as discriminatory. They wished to employ Mrs Elmi, and were unable to do so because of the refusal of store approval by Harrods. The discriminatory conduct on the part of Harrods could not be considered as tainting Moyses Stevens. They did not agree to it. They did not condone it. There was no legal basis on which they could be held liable.

Submissions on behalf of Harrods - General

Mr Goulding, who appeared for Harrods, prefaced his detailed submissions on the separate appeals with the following general observations:-

(1) Concessions are granted by Harrods to companies to sell goods in the Harrods Department Store.

(2) The individuals who sell the goods are employees of the concessionaire, not of Harrods.

(3) Harrods grants store approval to individuals as a precondition of working in Harrods store.

(4) The acts of discrimination alleged in these proceedings are not acts in respect of which the 1976 Act imposes a liability on Harrods.

(5) Liability is imposed by the 1976 Act on specified persons in particular relationships eg, employer/employee relationship, principal/agent relationship. The relationship between Harrods and the concessionaires and their employees is not covered by any provision in the Act.

(6) It is not for the Industrial Tribunal (or this Tribunal) to distort the language of the 1976 Act to extend its application to situations for which Parliament has not legislated.

(7) Section 7 does not apply to any of the three cases. The section was enacted for the first time in the 1976 Act in order to cover temporary workers supplied under contract by an employment agency. (We have not been referred to Hansard or other materials potentially relevant to legislative intention)

(8) Neither condition in S.7 is satisfied in the case of Harrods' concessionaires because -

(a) The individual workers, who claim to be "contract workers", are employed by the concessionaire. They do not "work for" Harrods, the alleged principal. The answer to the question: Who do they work for? is "Their employer". The fact that Harrods might benefit from the work of the individual does not mean that the individual "works for" Harrods. Harrods did not have work available for those contract workers to do. They worked in or at, but not for, Harrods.

(b) The contract between Harrods and the concessionaires does not place any contractual obligation on the concessionaires to supply any workers to Harrods. The fact that the concessionaire placed individuals in Harrods to sell goods in the commercial interest of the concessionaire and Harrods does not mean that the concessionaire is under any contractual obligation to supply workers to Harrods.

The separate Appeals

A Ms Remick

Mr Goulding submitted that the Industrial Tribunal made two errors of law:

(a) in concluding that the work performed by Ms Remick was for the benefit of Sheaffer and of Harrods and that therefore Ms Remick worked "for" Harrods; and

(b) in holding that Sheaffer were under a contractual obligation to supply contract workers to Harrods. It was legally incorrect to conclude, as the Tribunal did, that Harrods "obtained the services of two consultants for whom it did not have to pay wages, but from whose sales activities it gained a direct profit on each pen sold."

(2) The legally correct analysis of the situation was that Sheaffer employed Ms Remick as a pen sales consultant to sell its pens within Harrods store. In so doing Ms Remick worked for Sheaffer. The dominant work relationship was with the employer. Although Harrods and Sheaffer each had a commercial interest in the success of the venture, Ms Remick did not work for Harrods. Further, Sheaffer were under no contractual obligation to supply contract workers to Harrods. The requirement of Store Approval by Harrods did not change the nature of the work or the person for whom the work was done.

For those reasons the Tribunal misconstrued and misapplied S.7 of the 1976 Act to cover this case.

B Mrs Seeley

Mr Goulding made similar submissions on Mrs Seeley's case. They were slightly different from those in Ms Remick's case, because of the different language and reasoning of the Industrial Tribunal who found in favour of Mrs Seeley on the preliminary issue.

Mr Goulding submitted that -

(1) The Industrial Tribunal adopted a wrong approach. They formed a view that there was discrimination, and that there was an employment relationship and that it was necessary to find a section in the 1976 Act which would cover that situation.

(2) The Industrial Tribunal were wrong in law in concluding that "the supply of specialist perfume sales consultants was an integral and important and substantial part" of the agreement between Harrods and Brigade and that therefore the necessary obligation to supply contract workers to do available work for Harrods was satisfied.

(3) The Tribunal were also wrong to conclude that a substantial part of Mrs Seeley's efforts were towards selling perfumes on behalf of Harrods, for the benefit of Harrods and that Mrs Seeley therefore worked for Harrods.

(4) The correct analysis was similar to the analysis proposed in Ms Remick's case, namely that Mrs Seeley was employed by Brigade as a perfume sales consultant to sell its perfumes in Harrods store. She worked "for" Brigade. Although Harrods and Brigade each had a commercial interest in the success of the venture, Mrs Seeley did not work "for" Harrods. Brigade were under no obligation to supply contract workers to them. The Tribunal had made a similar error of law in deciding that S.7 covered the situation.

C Mrs Elmi's case

Mr Goulding submitted that the Industrial Tribunal's decision in this case was correct for these reasons:-

(1) There was no agency relationship between Harrods and Moyses Stevens. They were independent parties who entered into a commercial transaction. In the absence of the relationship of principal and agent S.32(2) did not apply.

(2) The Tribunal rightly rejected the case based on the Employment Agency provision in S.14 of the 1976 Act. Harrods were clearly not acting as an employment agency.

(3) Section 7 of the 1976 Act did not apply for the reasons submitted in the cases of Mrs Seeley and Ms Remick. The correct position in law was that Moyses Stevens were considering employing Mrs Elmi to sell its flowers and related products in the Harrods store. It was contemplated that she would be working for Moyses Stevens in the store. Although both Moyses Stevens and Harrods had a commercial interest in the success of the venture, the case was not covered by S.7 of the 1976 Act.

For all those reasons, Mr Goulding submitted that Harrods' appeals in the cases of Ms Remick and Mrs Seeley should be allowed and their applications against Harrods should be dismissed; and that Mrs Elmi's appeal should be dismissed. There was no possibility of Harrods being liable for race discrimination to the individual applicants under sections 7, 13 or 32(2) of the 1976 Act.

Conclusions

We have reached the conclusion that, on the correct interpretation and application of S.7 of the 1976 Act to the facts of these three cases,(a) Harrods' appeal in the cases of Ms Remick and Mrs Seeley should be dismissed, because there was no error of law on the part of the Industrial Tribunal, and that

(b) Mrs Elmi's appeal should be allowed on the basis that the Tribunal erroneously failed to apply the correct construction of S.7 to her case..

We have reached these conclusions for the following reasons:-

(1) The evident purpose of S.7 of the 1976 Act is to extend the scope of protection against race discrimination in employment beyond the case of discrimination on grounds of race by an employer against his own employee. The crucial question is whether that protection covers these cases.

(2) The class of persons protected by S.7 has to satisfy certain requirements. First, the persons must be employed "by another person". There is no dispute that that requirement is satisfied in these cases. It is common ground that Ms Remick was employed by Sheaffer, Mrs Seeley by Brigade and Mrs Elmi by Moyses Stevens. None of them were employed by Harrods.

(3) The second requirement is that that person who employs them "supplies them under a contract made with the principal". It is common ground that each of the employers of the Applicants had made a contract with Harrods ie, the concession or franchise agreement. In that contractual relationship it was the employer, not Harrods, who engaged the individual employees. They engaged them as employees. The contract with Harrods provided that the concessionaires would be responsible for, and be the employers of, the staff. They are, however, employed for work in the concession that was the subject of the contract with Harrods. The section does not require, contrary to Mr Goulding's submissions, that the workers are supplied to Harrods. All that is required is that there is a contract with a principal under which the other person supplies the workers. There was such a contract. Someone supplied the worker for the work available. It was not Harrods. The workers did not supply themselves. It could only be the employer of the worker.

(4) The critical question is whether the work, which was available for doing by those employees, was work "for" Harrods. If it was, then S.7 applies to that work and it would be unlawful for Harrods, in relation to work which the section applies, to discriminate against such a worker in, for example, not allowing him to do the work or to continue to do it or by subjecting him to any other detriment.

(5) In our judgment, as a matter of interpretation, the expression "any work for a person" goes wider than work done by an employee for an employer. The work may be for a person who is not the employer. That is implicit in the purpose and structure of the section. If the section extends beyond work by an employee for an employer, as it clearly does, it is a question of fact and degree in each case whether the particular work which is available for doing by the individuals is "work for a person". In the present cases the Industrial Tribunals in the cases of Ms Remick and Mrs Seeley were entitled to find that the work in question was work "for" Harrods. It was work done in Harrods store for the benefit of Harrods and ultimately under Harrods control, as Harrods may grant, refuse or withdraw store approval for the worker to do the work available. The fact that the applicants, as employees, also worked for their employer does not prevent the work which they did from being work "for" Harrods with the meaning of S.7. It was work from which Harrods derived direct benefit without themselves having to employ a person to do the work available.

For those reasons we are of the view that there is no error of law in the decisions in the cases of Ms Remick and Mrs Seeley. In the case of Mrs Elmi there was a misdirection of law in holding, on the facts found by the Tribunal, that the section did not cover the case of Mrs Elmi. The law was misapplied in that case. On the facts found by the Tribunal she was a person protected by S.7 of the 1976 Act.

For those reasons Harrods' appeals in the cases of Ms Remick and Mrs Seeley are dismissed and Mrs Elmi's appeal is allowed. We do not find it necessary to decide the other question raised in Mrs Elmi's appeal concerning S.32(2) of the 1976 Act.

Leave to appeal to the Court of Appeal is granted.

Order for legal aid taxation of Ms Remick's costs of the appeal.