Jivraj v Hashwani
Arbitrators are not employees within the meaning of the employment discrimination legislation, so a clause requiring arbitrators to be members of a particular religious community was valid.
Facts
Mr Jivraj and Mr Hashwani entered into a joint venture agreement, which contained an arbitration clause requiring the arbitrators to be respected members of the Ismaili community. When a dispute arose, Mr Hashwani appointed an arbitrator who was not an Ismaili, and argued that the requirement was void, because it was discrimination on grounds of religion or belief, contrary to the Employment Equality (Religion or Belief) Regulations 2003, which applied to the appointment of employees.
Legal principle
The Supreme Court held that the requirement was valid, because arbitrators were not employed within the meaning of the Regulations. Lord Clarke said that the dominant purpose of the appointment of an arbitrator is the impartial resolution of a dispute between the parties in accordance with the terms of the agreement, and that an arbitrator is a quasi judicial adjudicator, who is not in a position of subordination to the parties, so is not employed under a contract to do work. The court also said that, even if the Regulations applied, the requirement would have been justified as a genuine occupational requirement, given the parties' wish to have their dispute resolved within their community.
Related cases on the arbitration agreement: validity, scope and governing law
- Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd [1993] AC 334
- Enka Insaat ve Sanayi AS v OOO Insurance Co Chubb [2020] UKSC 38, [2020] 1 WLR 4117
- Fiona Trust & Holding Corp v Privalov [2007] UKHL 40, [2007] Bus LR 1719
- Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576, [2004] 1 WLR 3002
- Heyman v Darwins Ltd [1942] AC 356
- Kabab-Ji SAL v Kout Food Group [2021] UKSC 48
- Scott v Avery (1856) 5 HL Cas 811
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