UK: An Arbitrator Is An Employee Within The Meaning Of The Employment Equality (Religion And Belief) Regulations 2003

Last Updated: 26 October 2010

By Kartik Mittal, Zaiwalla & Co. Solicitors1


The society that we live in is changing rapidly. The United Kingdom has witnessed a major influx of people from difference cultures, religions and beliefs in the past few decades. This has made our society more cosmopolitan and more complex. This makes it necessary for the state to have laws which ensure that people live together peacefully, within the norms of society, and at the same time learns to respect each other's religions, values, morals, traditions and cultures.

The two conflicting rights associated with this change are:

  1. 'The Right to Equality.' This includes within its ambit equality in relation to employment. A corresponding duty which arises out of this Right is a duty not to discriminate on the basis of religion or belief; and
  2. An Individual's right to Freedom of Religion and Belief.

Both of these rights have been recognised under the United Nation's principle document on Human Rights, The Universal Declaration of Human Rights 1948.2

Since these rights necessarily overlap, it is sometimes necessary for Lawmakers to tailor them according to the needs of society. This article addresses a recent attempt by the Court of Appeal to do just that, in the case of Jivraj –v-Hashwani.

Jivraj –v-Hashwani [2010] EWCA Civ 712

This is a landmark judgement in which my firm is representing Mr. Sadruddin Hashwani in his claim against Mr. Nurdin Jivraj. The Court of Appeal in this case has harmonised the rights discussed above, while deciding the question of whether or not an Arbitrator comes within the ambit of the Employment Equality (Religion and Belief) Regulations 2003.


A commercial dispute arose between the parties in relation to a Joint Venture Agreement which they had entered into. The Joint Venture agreement contained an Arbitration Clause which provided for the appointment of a three-member Arbitration Tribunal to adjudicate any disputes between the parties. The Arbitration Clause provided that all members of the Tribunal shall be respected members of the Ismaili community and holders of high office within that community.3

In 2008, Mr. Hashwani commenced arbitration proceedings through our firm against Mr. Jivraj under the abovementioned arbitration agreement, and appointed Sir Anthony Colman as his nominated Arbitrator. Mr. Jivraj contended that this appointment was invalid as Sir Anthony Coleman was not a member of the Ismaili Community. He issued an application in the High Court of Justice seeking a declaration that his appointment was invalid.


Mr. Jivraj succeeded in his argument before the High Court, and Mr Hashwani appealed to the Court of Appeal .The Court of Appeal, giving limited permission to Appeal, heard arguments to determine the following issues:

  1. Does this Arbitration Agreement, discriminating as it does against non-Ismaili Arbitrators, come within the ambit of Regulation 6 of Employment Equality (Religion and Belief) Regulations 2003?
  2. If the Arbitration Agreement does discriminate against non Ismaili arbitrators, can such discrimination be justified under Regulation 7 of the Employment Equality (Religion and Belief) Regulations 2003?
  3. If the provision providing for the appointment of Ismaili arbitrators in the arbitration agreement is held to be discriminatory under points 1 and 2 above, will this render the whole arbitration agreement invalid or can the discriminatory provision be severed from the arbitration agreement?


LJ Moore- Bick, LJ Aikens and Sir Richard Buxton hearing this Appeal held that:

  1. The Employment Equality (Religion and Belief) Regulation 2003 applies to Arbitrators, as they are employees within the meaning of Regulation 3 by virtue of having entered personally into a contract to do work.4
  2. An Arbitration agreement constitutes an arrangement within the meaning of Regulation 6 (1) (a) and hence any discrimination sought to be made by such an arrangement is unlawful under the Regulations.5
  3. The Arbitration agreement in question requires the parties to refuse or not to offer employment to non members of the Ismaili community. This is unlawful under Regulation 6 (1) (c) of the Employment Equality (Religion and Belief) Regulation 2003.6
  4. The exception contained in Regulation 7 (3) of Employment Equality (Religion and Belief) Regulation 2003 does not apply to the present case, as it cannot be said that it was essential for the arbitrators to be members of the Ismaili community for them to adjudicate this commercial dispute between the parties. The job expected by the arbitrators did not require them to be members a particular community.7
  5. The whole of the arbitration agreement is void. The intention of the parties to arbitrate cannot be severed from the discriminatory provision that the arbitrators should be members of the Ismaili community as this would amount to re-writing the arbitration agreement.8

Impact of this Judgement on Future Arbitrations

Status of Arbitrator

The status of an arbitrator has been subject of debate for decades. This is best described in Merkin's Arbitration Law, 2004 which states that:

'It is not possible to classify the status of arbitrators as either fully contractual or fully statutory and it has indeed been said [by Mustill and Boyd] that the appointment of an arbitrator is not like anything else at all'

Following this judgement, the nature of an Arbitrator's status will be viewed as more akin to contractual rather than statutory, i.e. an arbitrator is an employee of the parties and therefore subject to national legislation intended to protect employees from discrimination in the workplace.

Our day to day choices of services

The Court of Appeal has given a wide interpretation to the term 'employment' under the Employment Equality (Religion and Belief) Regulation 2003. This will impact the everyday choices that we make while engaging any services, including those such as a carpenter or an electrician.9 This is because 'employment' is to be construed to include any Contract to personally provide services. As a result of this decision, even when engaging everyday services, such as that of a carpenter or electrician who contracts independently, it will be unlawful to discriminate, on the basis of their religion, against any individuals whose services you seek to engage.

Affect on Arbitrations governed by religious Institutions or bodies

It was argued on behalf of Mr. Jivraj that, if the court was to hold the Arbitration agreement invalid, it would curtail the freedom of members of a particular religion or community to have their disputes resolved within the community. The Court, having drawn a balance between an individual's right to freedom of religion and their right not to be discriminated against, stated as follows:

'If the arbitration clause had empowered the tribunal to act 'ex aequo et bono' it might have been possible to show that only an Ismaili could be expected to apply the moral principles and understanding of justice and fairness that are generally recognised within that community as applicable between its members, but the arbitrators' function under clause 8 is to determine the dispute between the parties in accordance with the principles of English law. That requires some knowledge of the law itself, including the provisions of the Arbitration Act 1996, and an ability to conduct the proceedings fairly in accordance with the rules of natural justice, but it does not call for any particular ethos'10

The position following this judgement seems to be that the parties are free to have their disputes adjudicated by their respective religious/community Arbitration institutions/individuals, even though it may amount to discrimination, if it can be shown that while adjudicating the dispute the institution/individual would be applying certain morals, principles or ethos which are only accustomed to the religion/community and would require adjudication by such institution/individual. In essence they would have to show that the nature of the job requires a person with such expertise as to justify discrimination. In cases such as this however, if a dispute is of a purely commercial nature, then discrimination shall not be allowed as it would come within the ambit of the Employment Equality (Religion and Belief) Regulations 2003.

Effect on current arbitration rules

Certain commentators have discussed how this judgment may impact on ICC and LCIA rules in that an arbitrator should not be of the same nationality as the parties in order to ensure independence. The issue of nationality falls within the term of race and not religion/belief and therefore falls under different legislation. In my view this discrimination would fall under the exception that discrimination is only illegal if it is without lawful cause. Since the intention of the ICC or any other arbitration rules is to maintain independence and to ensure an unbiased arbitration, then such discrimination would be lawful.


The decision of the Court of Appeal is in consonance with the spirit of the Equality Act 2010. This legislation goes a step further in reinforcing the fact that the United Kingdom is a front-runner on the question of ensuring equality, fairness and justice in its society.


1. We acknowledge the contribution of Ms. Emily Golmohamad.

2. Article 7 and 18 of the Universal Declaration of Human Rights 1948

3. Clause 8 of the Joint Venture Agreement dated 29th January 1981

4. Para 17 of the Judgement, Jivraj –v- Hashwani [2010] EWCA Civ 712

5. Para 23 of the Judgement, Jivraj –v- Hashwani [2010] EWCA Civ 712

6. Para 24 of the Judgement, Jivraj –v- Hashwani [2010] EWCA Civ 712

7. Para 29 of the Judgement, Jivraj –v- Hashwani [2010] EWCA Civ 712

8. Para 32 of the Judgement, Jivraj –v- Hashwani [2010] EWCA Civ 712

9. Para 19 of the Judgement, Jivraj –v- Hashwani [2010] EWCA Civ 712

10. Para 29 of the Judgement, Jivraj-v- Hashwani [2010] EWCA Civ 712

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Barlow Lyde & Gilbert LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Barlow Lyde & Gilbert LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions