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

By Kartik Mittal, Zaiwalla & Co. Solicitors1

Introduction

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:

'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 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.

Facts

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...