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On appeal from: [2010] EWCA Civ 712

Considers whether arbitrators are employees for the purposes of the Employment Equality (Religion or Belief) Regulations 2003 and whether a term in an arbitration agreement providing that all arbitrators must be of a certain religious belief, if unlawful, rendered the whole of the arbitration agreement void.

The Supreme Court unanimously allowed the appeal on the ground that an arbitrator was not employed under a contract personally to do work within the meaning of the Regulations. An arbitrator fell outside the definition of a worker laid down by the case law of the CJEU and was instead an independent provider of services who was not in a relationship of subordination with the person who received the services. The dominant purpose of the contract was not the sole test for determining employment, although it might be relevant in arriving at the correct conclusion on the facts of a particular case.  The majority also found that the requirement would have fallen within the exception for genuine occupational requirements if the Regulations had applied. Arbitration involved more than the application of a given national law to a dispute, and the religious or other beliefs of an arbitrator may be relevant to the manner in which disputes are resolved through arbitration. In this case, the judge had correctly found that the parties had demonstrated an ethos, based on religion, for dispute resolution contained within the Ismaili Muslim community. The severance issue did not therefore arise.

For judgment, please download: [2011] UKSC 40
For the Court’s press summary, please download: Press Summary
For a non-PDF version of the judgment, please visit: BAILII