The Supreme Court in Jivray v Hashwani has held that arbitrators are not employees for the purpose of anti-discrimination legislation.
In that case, an arbitration clause in a business agreement provided that any dispute should be resolved by arbitration before three arbitrators, each of whom was required to be a respected member of the Ismaili Community. Mr Hashwani nominated Sir Anthony Colman, a retired judge of the Commercial Court who is not a member of that community and argued that the clause was unlawful because it discriminated on grounds of religion under the Employment Equality (Religion or Belief) Regulations 2003.
However, the Supreme Court, overturning the Court of Appeal’s ruling, held that an arbitrator is not an employee but an independent provider of services with a duty of impartiality to both sides of a dispute, and therefore the Regulations did not apply.
The parties could properly regard arbitration before three Ismailis as likely to involve a procedure in which parties could have confidence.