- Service providers not under user's direction: no discrimination protection (News, 4 August 2011)
- Relevant law
- Facts and lower court judgments
- Arbitrators are not employees
- Analysis of caselaw and legislation
- Application to arbitrators
- Application to other factual contexts
- Where the Court of Appeal went wrong
- The genuine occupational requirement defence
- The proper test
- Application of the test to arbitrators
- Lord Mance's reservations regarding the occupational requirement test
- No reference to the ECJ
(1) In determining whether an individual is covered by UK discrimination legislation protecting those in 'employment', (a) it is not sufficient to ask simply whether the contract was a contract personally to do work, (b) rather it must be established that the individual, under that contract, performs services for and under the direction of another person in return for which he receives remuneration, and (c) independent providers of services who are not in a relationship of subordination with the person who receives the services will not be covered, and (2) where an employer has an ethos based on religion or belief, in determining whether, having regard to that ethos and to the nature of the employment or the context in which it is carried out, being of a particular religion or belief is a genuine requirement for a job, (a) the question is whether in all the circumstances of the case the requirement was genuine, legitimate and justified, (b) this is an objective question for the court, but (c) it is not required that a particular religion or belief is an essential requirement for the job, and so (3) in the context of appointing an arbitrator, and the use thereafter of his services, under the arbitration clause contained in a joint venture agreement between members of the Ismaili community, which required that all arbitrators be members of that community, that requirement was lawful because (a) the arbitrator would not be in 'employment', and hence the relevant discrimination legislation would not cover the appointment or services, and (b) in any event being Ismaili would be a genuine occupational requirement for the post, according to the Supreme Court in Jivraj v Hashwani.
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