Jivraj v Hashwani
[2011] UKSC 40
Independent editorial summary — not the official judgment. Read the full judgment via the source link.
Ratio Decidendi
An arbitrator is not employed under 'a contract personally to do work' within the meaning of the Employment Equality (Religion or Belief) Regulations 2003, read in the light of Directive 2000/78/EC: although an arbitrator renders personal services which he cannot delegate, he is an independent provider of services who is not in a relationship of subordination with the parties, and the dominant purpose of his appointment is the impartial resolution of the dispute. A term of an arbitration agreement requiring arbitrators to be drawn from a particular religious community is therefore not invalidated by the Regulations; had they applied, the requirement of Ismaili arbitrators would in any event have been a genuine occupational requirement under regulation 7(3).
Facts
A 1981 joint venture agreement between Mr Jivraj and Mr Hashwani, both members of the Ismaili community, provided by article 8 that disputes should be resolved by arbitration before three arbitrators, each of whom should be a respected member of the Ismaili community. After the joint venture was dissolved and earlier Ismaili conciliation efforts failed, Mr Hashwani asserted a claim of US$4.4 million in 2008 and appointed Sir Anthony Colman, a retired Commercial Court judge who is not an Ismaili, as arbitrator, contending that the religious requirement was void as unlawful discrimination. David Steel J held that arbitrators were not 'employed' within the Regulations, but the Court of Appeal held that the Regulations applied, that the requirement was not a genuine occupational requirement, and that the term was void in its entirety, invalidating Mr Hashwani's nomination.
Judgment Summary
The Supreme Court unanimously allowed Mr Jivraj's appeal, with the result that the arbitration clause stood as written and the severance issue did not arise. Lord Clarke, applying the Court of Justice's decision in Allonby, held that arbitrators do not perform services for and under the direction of the parties: the arbitrator's role is quasi-judicial and in no sense one of subordination, so the appointment of arbitrators falls outside the Regulations. He further held, had it been necessary, that the requirement that the arbitrators be respected members of the Ismaili community was legitimate and justified and so a genuine occupational requirement under regulation 7(3); Lord Mance, concurring, emphasised the entirely special character of the arbitrator's office recognised in other legal systems.
Key Quotes
"He is rather in the category of an independent provider of services who is not in a relationship of subordination with the parties who receive his services"
— Lord Clarke at [40](verbatim, verified against the judgment)
"The arbitrator is in critical respects independent of the parties. His functions and duties require him to rise above the partisan interests of the parties and not to act in, or so as to further, the particular interests of either party."
— Lord Clarke at [41](verbatim, verified against the judgment)
Subsequent Treatment
In Clyde & Co LLP v Bates van Winkelhof [2014] UKSC 32 Baroness Hale noted Jivraj's use of the Allonby concept of subordination in the discrimination context, while cautioning that subordination is not a freestanding and universal characteristic of being a worker.
The Employment Equality (Religion or Belief) Regulations 2003 were revoked and restated by the Equality Act 2010 with effect from 1 October 2010; the court recorded that it was not suggested that any of the issues in the appeal was affected by the revocation.
What To Do Next
Get Professional Help