Jivraj v Hashwani (Rev 2)

Jivraj v Hashwani (Rev 2)

The requirement that arbitrators be members of the Ismaili community constitutes unlawful religious discrimination under the Employment Equality (Religion and Belief) Regulations 2003, is not justified as a genuine occupational requirement, and cannot be severed from the arbitration clause without fundamentally altering the parties' agreement; thus, the entire arbitration clause is void.

Parties
Claimant/respondent; Defendant/appellant: Nurdin Jivraj; Defendant/appellant; Claimant/respondent: Sadruddin Hashwani
Jurisdiction
England and Wales
Judgment Date
22 June 2010
Procedural Posture
Civil Appeal / Court of Appeal Judgment on Appeal From High Court
Outcome
Appeal allowed in part; arbitration clause void
Legal Topics
Employment Equality (religion and Belief) Regulations 2003, Arbitration Agreements, Severance of Contract Terms, Genuine Occupational Requirement Exception, EU Directive 2000/78/ec
Employment Law Arbitration Equality and Discrimination Law Employment Equality (religion and Belief) Regulations 2003 Arbitration Agreements Severance of Contract Terms Genuine Occupational Requirement Exception EU Directive 2000/78/ec

Case Brief

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Parties

Nurdin Jivraj

Claimant/respondent; Defendant/appellant

Sadruddin Hashwani

Defendant/appellant; Claimant/respondent

Procedural Posture

Civil Appeal / Court of Appeal Judgment on Appeal From High Court

Legal Issues

  1. 1 Whether arbitrators are 'employees' under the Employment Equality (Religion and Belief) Regulations 2003
  2. 2 Whether a requirement that arbitrators be Ismaili is void for religious discrimination
  3. 3 Whether the 'genuine occupational requirement' exception applies

Ratio Decidendi

The requirement that arbitrators be members of the Ismaili community constitutes unlawful religious discrimination under the Employment Equality (Religion and Belief) Regulations 2003, is not justified as a genuine occupational requirement, and cannot be severed from the arbitration clause without fundamentally altering the parties' agreement; thus, the entire arbitration clause is void.

Court Disposition

Appeal allowed in part; arbitration clause void

Orders

  • Declaration that clause 8(1) of the joint venture agreement is void in its entirety
  • Affirmation that the nomination of Sir Anthony Colman as arbitrator is invalid