The parties had a joint venture agreement which provided that any dispute was to be referred to an arbitrator from the Ismaili community. The claimant said that this method of appointment became void as a discriminatory provision under the 2003 Regulations. The High Court found the appointment to be outwith the provisions, but this was reversed on appeal. J appealed again.
Held: The appeal succeeded (Lord Mance dissenting in part). The Regulations were not applicable to the selection, engagement or appointment of arbitrators. An arbitrator was not a person employed under ‘a contract personally to do any work’ for the purpose of legislation prohibiting discrimination on the grounds of religion or belief.
Lord Clarke said: ‘the dominant purpose of appointing an arbitrator or arbitrators is the impartial resolution of the dispute between the parties in accordance with the terms of the agreement and, although the contract between the parties and the arbitrators would be a contract for the provision of personal services, they were not personal services under the direction of the parties.’
He went on to accept a submission that, within the Framework Directive: ‘the expression ‘access . . to self-employment or to occupation’ means what it says and is concerned with preventing discrimination from qualifying or setting up as a solicitor, plumber, greengrocer or arbitrator. It is not concerned with discrimination by a customer who prefers to contract with one of their competitors once they have set up in business. That would not be denying them ‘access . . to self-employment or to occupation’.’
Lord Phillips, President, Lord Walker, Lord Mance, Lord Clarke, Lord Dyson
[2011] UKSC 40, UKSC 2010/0170, UKSC 2010/0158, [2011] IRLR 827, [2011] 32 EG 54, [2011] ArbLR 28, [2011] Bus LR 1182, [2011] ICR 1004, [2011] CILL 3076, [2011] 1 WLR 1872
Bailii, Bailii Summary, SC Summary, SC
Employment Equality (Religion or Belief) Regulations 2003, Council Framework Directive 2000/78/EC of 27 November 2000, Equality Act 2006 83, Arbitration Act 1996 33
England and Wales
Citing:
At first instance – Jivraj v Hashwani ComC 26-Jun-2009
The claimant said that the requirement in an arbitration clause for all the arbitrators to be members of the Ismaili community was unlawful under the 2003 Regulations.
Held: The appointment was not discriminatory. An arbitrator’s employment . .
Cited – Litster and Others v Forth Dry Dock and Engineering Co Ltd HL 16-Mar-1989
The twelve applicants had been unfairly dismissed by the transferor immediately before the transfer, and for a reason connected with the transfer under section 8(1). The question was whether the liability for unfair dismissal compensation . .
Appeal from – Jivraj v Hashwani (Rev 2) CA 22-Jun-2010
The court was asked whether parties to an arbitration agreement in a commercial contract can stipulate that the tribunal is to be drawn from members of a particular religious group, in this case the Ismaili community.
Held: The defendant’s . .
Cited – Marleasing SA v La Comercial Internacional de Alimentacion SA ECJ 13-Nov-1990
Sympathetic construction of national legislation
LMA OVIEDO sought a declaration that the contracts setting up Commercial International were void (a nullity) since they had been drawn up in order to defraud creditors. Commercial International relied on an EC . .
Cited – Percy v Church of Scotland Board of National Mission HL 15-Dec-2005
The claimant appealed after her claim for sex discrimination had failed. She had been dismissed from her position an associate minister of the church. The court had found that it had no jurisdiction, saying that her appointment was not an . .
Cited – von Hoffmann v Finanzamt Trier ECJ 16-Sep-1997
An arbitrator’s services are not those of a lawyer for the purposes of determining the place of supply of service for VAT purposes.
ECJ Sixth VAT Directive – Interpretation of Article 9(2)(e), third indent . .
Cited – Kelly v Northern Ireland Housing Executive; Loughran v Northern Ireland Housing Executive HL 29-Jul-1998
Provisions against discrimination on religious grounds in Northern Ireland, could apply to appointment of a firm to a panel of experts, where one person was designated to carry out that work. ‘it is essential, for there to be ’employment,’ that the . .
Cited – Deborah Lawrie-Blum v Land Baden-Wuerttemberg ECJ 3-Jul-1986
The Equal Treatment Directive is concerned with ‘workers’ which is a term of art in Community law: ‘That concept must be defined in accordance with objective criteria which distinguish the employment relationship by reference to the rights and . .
Cited – Allonby v Accrington and Rossendale College for Education and Employment ECJ 13-Jan-2004
ECJ Principle of equal pay for men and women – Direct effect – Meaning of worker – Self-employed female lecturer undertaking work presumed to be of equal value to that which is undertaken in the same college by . .
Cited – Kurz (ne Yuce) v Land Baden-Wurttemberg ECJ 19-Nov-2002
ECJ EEC-Turkey Association Agreement – Freedom of movement for workers – Article 6(1) of Decision No 1/80 of the Association Council – Scope – Registration as duly belonging to the labour force of a Member State . .
Cited – Quinnen v Hovells 1984
Waite J said: ‘The concept of a contract for the engagement of personal work or labour lying outside the scope of a master-servant relationship is a wide and flexible one, intended by Parliament in our judgment to be interpreted as such.’ The . .
Cited – O’Brien v Ministry of Justice SC 28-Jul-2010
The appellant had worked as a part time judge. He now said that he should be entitled to a judicial pension on retirement by means of the Framework Directive. The Regulations disapplied the provisions protecting part time workers for judicial office . .
Cited – Legal Services Commission v Yvonne Patterson CA 11-Nov-2003
The claimant worked as a sole practitioner solicitor. The firm failed the first part of its franchise assessment. She sought to allege race discrimination. The EAT rejected the complaint on the basis that she was not an employee.
Held: The . .
Cited – Perceval-Price, and others v Department of Economic Development etc CANI 12-Apr-2000
A full-time a full-time chairman of industrial tribunals, a full time chairman of social security appeal tribunals, and a social security commissioner are workers within the meaning of the European legislation, even though, by domestic legislation . .
Cited – Mirror Group Newspapers v Gunning CA 1985
The claimant sought to have transferred to her, her father’s agency for the wholesale distribution of Sunday newspapers. The claimant alleging sex discrimination after being refused. The company said that she was not an employee within the 1975 Act. . .
Cited – Hugh-Jones v St John’s College, Cambridge 1979
An office holder can agree to execute work or labour without becoming an employee. . .
Cited – Tanna v Post Office EAT 1981
The applicant sought appointment as a post-master, and claimed race discrimination when the respondent failed to interview or appoint him. He was required only to provide premises and to ensure that services were provided without being obliged . .
Cited – K/S Norjarl A/S v Hyundai Heavy Industries Co Ltd CA 1992
A third arbitrator appointed by the arbitrators already appointed, accepted office on the basis that the hearing would take place by a specified date and would last for a specified period. Three years later, the plaintiffs’ solicitors requested the . .
Cited – Byrne Brothers (Formwork) Limited v Baird EAT 18-Sep-2001
EAT The Tribunal was asked whether the claimant was a worker within the meaning of the Regulations and so entitled to their protection in receiving holiday pay.
Held: The appropriate classification of a . .
Cited – Centrum Voor Gelijkheid Van Kansen En Voor Racismebestrijding v Firma Feryn NV ECJ 10-Jul-2008
The company declared that it would not employ immigrants to work on certain customers’ houses, saying that the customers would be reluctant to allow access. The Centrum, an anti racist organisation said this was in breach of the Directive, and . .
Cited – Centrum Voor Gelijkheid Van Kansen En Voor Racismebestrijding v Firma Feryn NV ECJ 12-Mar-2008
(Social Policy) (Opinion) The defendant company had advertised for workers, but said it was unwilling to employ Morrocans.
Advocate General Maduro expressed the opinion that the Directive must be understood in the framework of a wider policy to . .
Cited – Mingeley v Pennock and Another (T/A Amber Cars) CA 9-Feb-2004
The claimant taxi driver sought to assert race discrimination. The respondent argued that he had not been an employee, but an independent contractor. The Claimant owned his own vehicle and paid the respondents minicab operators pounds 75 per week . .
Cited – Stadt Halle, RPL Recyclingpark Lochau GmbH v Arbeitsgemeinschaft Thermische Restabfall- und Energieverwertungsanlage TREA Leuna ECJ 11-Jan-2005
ECJ Directive 92/50/EEC – Public service contracts – Award with no public call for tenders – Award of the contract to a semi-public undertaking – Judicial protection – Directive 89/665/EEC
Cited by:
Cited – Clyde and Co Llp and Another v Bates van Winkelhof CA 26-Sep-2012
The claimant was a solicitor partner with the appellant limited liability partnership at their offices in Tanzania. She disclosed what she believed to be money laundering by a local partner. She was dismissed. She had just disclosed her pregnancy . .
Cited – X v Mid Sussex Citizens Advice Bureau and Another SC 12-Dec-2012
The appellant was disabled, had legal qualifications, and worked with the respondent as a volunteer. She had sought assistance under the Disability Discrimination Act, now the 2012 Act, saying that she counted as a worker. The tribunal and CA had . .
Cited – Halawi v WDFG UK Ltd (T/A World Duty Free) CA 28-Oct-2014
The claimant said that she had been discriminated against on the grounds of her religion. She worked as a beauty consultant at the airport, but through a limited company. Her airside pass had been withdrawn. She now appealed against rejection of her . .
Cited – Uber Bv and Others v Aslam and Others SC 19-Feb-2021
Smartphone App Contractors were as Workers
The court was asked whether the employment tribunal was entitled to find that drivers whose work was arranged through Uber’s smartphone application work for Uber under workers’ contracts and so qualify for the national minimum wage, paid annual . .
Cited – Pimlico Plumbers Ltd and Another v Smith SC 13-Jun-2018
The parties disputed whether Mr Smith had been an employee of or worker with the company so as to bring associated rights into play. The contract required the worker to provide an alternate worker to cover if necessary.
Held: The company’s . .
Lists of cited by and citing cases may be incomplete.
Arbitration, Discrimination, European, Legal Professions
Updated: 10 November 2021; Ref: scu.442225