Jivraj v Hashwani [2011] UKSC 40

In brief

Supreme Court (Lord Clarke, with whom Lord Phillips, Lord Walker and Lord Dyson agree; Lord Mance concurring), 27 July 2011. A 1981 joint-venture agreement required disputes to go to arbitrators who were respected members of the Ismaili community. The question was whether appointing an arbitrator is employment under a contract personally to do work (2003 Regulations reg 2(3); EA2010 s.83(2)(a)), which would have made the religious requirement unlawful discrimination. Held: no. Following Allonby, the distinction is between a person who performs services for and under the direction of another in return for remuneration and an independent provider of services who is not in a relationship of subordination [34]; the domestic dominant purpose line of cases is not the test, or not the sole test [36]; an arbitrator is an independent provider, not subordinate to the parties [40]–[41]; whether a plumber, solicitor, accountant or doctor is within the definition depends on applying the Allonby principles to the particular case [46]. Disposal: the Regulations were not applicable to the selection, engagement or appointment of arbitrators; appeal allowed [50]. Obiter, the Ismaili requirement would have been a genuine occupational requirement — genuine, legitimate and justified [68], [71]. Toolkit posture: the authority on the outer edge of employment in EA2010 Part 5 — a contract personally to do work means subordination, not merely personal service — so genuinely independent consultants, associates and contractors are outside the employment provisions (though a s.41 contract worker supplied through a third party, a s.49 office holder, or a Part 3 service relationship may still apply on the facts). Identity-blind. Decision-support, not legal advice.

Key provisions

• §23 — An arbitrator is not employed under a contract personally to do work: [23] "the role of an arbitrator is not naturally described as employment under a contract personally to do work"
• §27 — The Allonby distinction governs EA2010 s.83(2): [27] the Court of Justice distinguishes those in substance employed from independent providers of services; that approach "must remain the correct approach to the definition of employment in section 83(2) of the EA".
• §34 — The essential questions — direction and remuneration versus independent provision: [34] the questions are "whether, on the one hand, the person concerned performs services for and under the direction of another person in return for which he or she receives remuneration or, on the other hand, he or she is an independent provider of services who is not in a relationship of subordination with the person who receives the services".
• §36 — Dominant purpose is not the test: [36] "They also show that dominant purpose is not the test, or at any rate not the sole test."
• §40–41 — Arbitrators are independent providers, not subordinate to the parties: [40] "He is rather in the category of an independent provider of services who is not in a relationship of subordination with the parties who receive his services"; [41] the arbitrator is in critical respects independent of the parties and is a quasi-judicial adjudicator.
• §46 — Contractors and professionals — depends on the Allonby principles case by case: [46] it would be surprising if a customer engaging a plumber on a one-off contract were subject to the whole gamut of discrimination legislation; "all will depend upon the application of the principles in Allonby to the particular case".
• §50 — Disposal — Regulations not applicable to arbitrator appointments; appeal allowed: [50] "I agree with the judge that the Regulations are not applicable to the selection, engagement or appointment of arbitrators."
• §68–71 — Obiter — the religious requirement would have been a genuine occupational requirement: [68] the requirement "can be regarded as a genuine occupational requirement on the basis that it was not only genuine but both legitimate and justified"; [71] I would, if necessary, have allowed the appeal on the basis that article 8 was a GOR within regulation 7(3).

When relevant

Any question whether a consultant, associate, freelancer, contractor, non-executive, panel member or other independent role is inside the EA2010 employment provisions (Part 5): this is the authority on a contract personally to do work — subordination under direction for remuneration, not merely personal service. Also relevant to occupational-requirement reasoning (obiter). Population scope: independent providers are outside Part 5 employment; contract workers supplied via a third party (s.41), personal office holders (s.49) and service users (Part 3, s.29) have their own routes; worker-status case law (Uber, Pimlico Plumbers) is not held — verify on cite.