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By section 33, he has a duty to act fairly and impartially as between the parties and to adopt procedures suitable to the circumstances of the particular case so as to provide a fair means of determination of the issues between the parties. Ratio |
Section 34 provides that, subject to the right of the parties to agree any matter, it is for the arbitrator to decide all procedural matters. Ratio |
Examples of the width of those powers can be seen in the particular examples in section 34(2). Ratio |
Section 40 provides that the parties shall do all things necessary for the proper and expeditious conduct of the arbitration, which includes complying with any order of the arbitrator, whether procedural or otherwise. Ratio |
Once an arbitrator has been appointed, at any rate in the absence of agreement between them, the parties effectively have no control over him. Ratio |
Unless the parties agree, an arbitrator may only be removed in exceptional circumstances: see sections 23 and 24. Ratio |
The court was referred to many other statutory provisions in other parts of the world and indeed many other international codes, including the UNCITRAL (United Nations Commission on International Trade Law) Model Law on International Commercial Arbitration 1985, the ICC Rules and the London Court of International Arbit... |
The Regulations themselves include provisions which would be wholly inappropriate as between the parties and the arbitrator or arbitrators. Ratio |
For example, regulation 22(1) provides: Anything done by a person in the course of his employment shall be treated for the purposes of these Regulations as done by his employer as well as by him, whether or not it was done with the employers knowledge or approval. Ratio |
It is evident that such a provision could not apply to an arbitrator. Ratio |
In this regard an arbitrator is in a very different position from a judge. PRE |
The precise status of a judge was left open by this court in OBrien [2010] 4 All ER 62, in which the court referred particular questions to the Court of Justice: see para 41. PRE |
However, as Sir Robert Carswell said in Perceval-Price [2000] IRLR 380 and Lord Walker said in OBrien (at para 27), judges, including both recorders and all judges at every level are subject to terms of service of various kinds. PRE |
As Sir Robert put it, although judges must enjoy independence of decision without direction from any source, they are in other respects not free agents to work as and when they choose, as are self-employed persons. PRE |
In both those cases the court was considering the relationship between the relevant department of state and the judges concerned. Ratio |
It was not considering the relationship between the judges and the litigants who appear before them. Ratio |
Here, by contrast, the court is considering the relationship between the parties to the arbitration on the one hand and the arbitrator or arbitrators on the other. Ratio |
As I see it, there is no basis upon which it could properly be held that the arbitrators agreed to work under the direction of the parties as contemplated in para 67 of Allonby [2004] ICR 1328. Ratio |
Further, in so far as dominant purpose is relevant, I would hold that the dominant purpose of appointing an arbitrator or arbitrators is the impartial resolution of the dispute between the parties in accordance with the terms of the agreement and, although the contract between the parties and the arbitrators would be a... |
In reaching this conclusion it is not necessary to speculate upon what the position might be in other factual contexts. Ratio |
It was submitted that the effect of the decision of the Court of Appeal is that a customer who engages a person on a one- off contract as, say, a plumber, would be subject to the whole gamut of discrimination legislation. Ratio |
It would indeed be surprising if that were the case, especially given the fact that the travaux prparatoires contained no such suggestion: see the impact assessment in the Commissions Proposal for the Directive 1999/0225 (CNS), Brussels 1999, which was concerned solely with the position of enterprises of various types.... |
There was no consideration of the effect on individual choice by customers. Ratio |
See also a memorandum from the Commissions Director General for Employment and Social Affairs to the EU Committee of the House of Lords dated 9 February 2000 to much the same effect. Ratio |
This is not to say that the Regulations may not apply in the case of the plumber, solicitor, accountant or doctor referred to by the Court of Appeal in para 16. Ratio |
As already stated, all will depend upon the application of the principles in Allonby to the particular case. Ratio |
As I see it, the problem with the approach adopted by the Court of Appeal is that it focuses only on the question whether there is a contract to do work personally, whereas it is necessary to ask the more nuanced questions identified in Allonby. Ratio |
In para 19 the Court of Appeal relied in support of its more general approach upon the opinion of Advocate General Maduro in Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v Firma Feryn NV (Case C- 54/07) [2008] ICR 1390. Ratio |
It said this in paras 19 and 20: 19. Ratio |
That the choice of a solicitor, plumber or arbitrator, whether on religious, racial or any other grounds, should fall foul of regulation 6(1) of the 2003 Regulations, even if made entirely privately, may strike some people as surprising. Ratio |
However, in [the Firma Feryn case] Advocate General Maduro expressed the opinion, at para 14, that the Directive must be understood in the framework of a wider policy to foster conditions for a socially inclusive labour market and to ensure the development of democratic and tolerant societies which allow the participat... |
That case arose out of a statement by a company that supplied and fitted up-and-over garage doors that it would not employ immigrants as fitters because its customers were unwilling to have them in their homes. Ratio |
One can well see why a public statement of that kind might be regarded as discriminatory: it was liable to deter potential applicants for employment and thereby militate against a socially inclusive labour market. Ratio |
The court itself did not expressly adopt the Advocate General's expression of opinion; rather it confined itself to holding, at para 25, that a general statement of the kind under consideration constituted direct discrimination because it was likely to deter some potential applicants and thus hinder their access to the... |
None the less, the Advocate General's view of the broad policy objective of the Directive is in our opinion supported by the recitals. Ratio |
It is also one which is essentially incompatible with an acceptance of the right to discriminate between any providers of services on the basis of race, sex, religion or any of the other grounds covered by the Directive. Ratio |
20. Ratio |
Mr. Davies sought to meet that broad analysis by saying that the primary concern of the Directive is access to employment and economic activity, not private choices by consumers between those who have already gained access to the market. Ratio |
The language of article 3 could be construed in that more limited way, but the expression access to employment, to self-employment or to occupation is capable of a broader interpretation consistent with the policy objectives we have described. Ratio |
In any event, we are concerned with the language of domestic legislation, which is not restricted by the scope of the Directive and which is underpinned by broadly the same policy considerations as those identified by Advocate General Maduro in the Firma Feryn case, whether it was introduced before or after the publica... |
I would not accept that analysis. Ratio |
The Firma Feryn case was not relied upon in the course of the oral argument in the Court of Appeal. Ratio |
It was referred to in answer to a letter from the Court of Appeal asking questions on the assumption that an engagement to provide services gave rise to an employment relationship under the Regulations. Ratio |
The case concerned conventional employment relationships and did not discuss at all the extension of discrimination law to one-off contracts for services. Ratio |
The Court of Justice held that a racially discriminatory statement by an employer as to its recruitment policy could constitute direct discrimination even if there was no actual victim. Ratio |
There was no actual victim because there was no evidence that anyone who might have lost out as a result of the policy had actually applied, or would have applied, for a position with that employer. Ratio |
The Advocate General thus expressed his opinion in a case which was squarely concerned with employment and not with the boundary between employment and self-employment and in which no reference was made to Lawrie-Blum [1987] ICR 483, Kurz [2002] ECR I-10691 or Allonby [2004] ICR 1328. Ratio |
Some reliance was placed upon the reference to the conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions in article 3(1)(a) of the Directive. Ratio |
In para 20 the Court of Appeal gave a wide construction to that provision, rejecting the submission made by Mr Davies that it related to barriers to entry to trades, professions and occupations. Ratio |
It did so on the same footing as before, namely that a wide meaning should be given to the terms of the Directive and, in any event, to the Regulations. Ratio |
However, I would accept Mr Davies submission that the expression access to self-employment or to occupation means what it says and is concerned with preventing discrimination from qualifying or setting up as a solicitor, plumber, greengrocer or arbitrator. Ratio |
It is not concerned with discrimination by a customer who prefers to contract with one of their competitors once they have set up in business. Ratio |
That would not be denying them access to self-employment or to occupation. Ratio |
I see no reason to give a different meaning to the Regulations from that given to the Directive. Ratio |
For these reasons I prefer the conclusion of the judge to that of the Court of Appeal. Ratio |
I agree with the judge that the Regulations are not applicable to the selection, engagement or appointment of arbitrators. Ratio |
It follows that I would hold that no part of clause 8 of the JVA is invalid by reason of the Regulations and would allow the appeal on this ground. Ratio |
Genuine occupational requirement Ratio |
If the above conclusion is correct, this point does not arise but it was fully argued and I will briefly consider it. Ratio |
The question considered by the judge was whether, if regulation 6(1)(a) or (c) would otherwise apply, it is prevented from applying by regulation 7(1) and (3). Ratio |
It will be recalled that, by regulation 7(1), regulations 6(1)(a) and (c) do not apply where regulation 7(3) applies and that regulation 7(3) provides: This paragraph applies where an employer has an ethos based on religion or belief and, having regard to that ethos and to the nature of the employment or the context in... |
Those provisions were made in accordance with the exceptions in relation to occupational requirements made by article 4 of the Directive, which provides: 1. Ratio |
Notwithstanding article 2(1) and (2), member states may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in article 1 shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the contex... |
2. Ratio |
Member states may maintain national legislation in force at the date of adoption of this Directive or provide for future legislation incorporating national practices existing at the date of adoption of this Directive pursuant to which, in the case of occupational activities within churches and other public or private o... |
This difference of treatment shall be implemented taking account of members states constitutional provisions and principles, as well as the general principles of Community law, and should not justify discrimination on another ground. . Ratio |
It is common ground that, as the judge said at para 40, a rigorous and strict approach must be adopted to the question whether the particular exception applies: Stadt Halle Thermische Restabfall-und Energieverwertungsanlage TREA Leuna (Case C-26/03) [2005] ECR I-1 and Marleasing [1990] ECR I-4135. Ratio |
v Arbeitgemeinschaft Ratio |
Although some reliance was placed in the course of argument on regulation 7(2), I shall focus first on paragraph (3). Ratio |
Since 1 October 2010 the provisions of regulation 7 have been replaced by those of Schedule 9 of the EA. Ratio |
Regulation 7(3) has been replaced by paragraph (3) of that Schedule, which provides: A person (A) with an ethos based on religion or belief does not contravene a provision mentioned in paragraph 1(2) by applying in relation to work a requirement to be of a particular religion or belief if A shows that, having regard to... |
It was not suggested that there is any significant difference between that paragraph and regulation 7(3). Ratio |
There are four relevant requirements under regulation 7(3). Ratio |
The issue between the parties centres upon whether the second requirement is satisfied. Ratio |
The requirements are (1) that the employer should have an ethos based on religion or belief; (2) that, 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 the job; (3) that, having regard to that... |
As to (1) it is not (and could not be) suggested here that Mr Jivraj and Mr Hashwani did not have such an ethos. Ratio |
As to (3), it is not in dispute that, if requirement (2) is satisfied, so that being an Ismaili is a genuine occupational requirement, it is or would be proportionate to apply it. Ratio |
As to (4), it is plain that Sir Anthony Colman does not meet the requirement in the JVA that the arbitrators should be members of the Ismaili community. Ratio |
The essential issue between the parties is whether requirement (2) is satisfied. Ratio |
The question is therefore whether, having regard to the Ismaili ethos and to the nature of the employment or the context in which it is carried out, being of the Ismaili religion or belief is a genuine requirement for the job. Ratio |
The judge held that this requirement was satisfied whereas the Court of Appeal held that it was not. Ratio |
Our attention was drawn on behalf of Mr Jivraj to what is said to be an important difference between paragraphs (2) and (3) of regulation 7. Ratio |
Paragraph (2) is concerned with the case where the employer does not have a particular ethos based on religion or belief but wishes to recruit a worker who does have such an ethos. Ratio |
In that event, for the exception to apply, being of the particular ethos or belief must be a genuine and determining occupational requirement. Ratio |
By contrast, where (as here) the employer has an ethos based on religion or belief, it is sufficient under paragraph (3) that being of a particular religion or belief is a genuine occupational requirement for the job. Ratio |
Mr Davies submits that the difference between the two cases is this. Ratio |
In the first case the question is whether being of a particular religion or belief is a genuine and determining occupational requirement. Ratio |
That is to say it must be an essential requirement for the job. Ratio |
Whether it is or not is an objective question which the court can readily decide. Ratio |
In the second case, on the other hand, the question for the court is subjective, namely whether it is a genuine requirement for the job in the eyes of the employer or employers. Ratio |
This, Mr Davies suggests, reflects the sensible principle that it is not for the court to sit in judgment over matters of religion or belief. Ratio |
By contrast, Mr Brindle disputes the idea that the test is entirely subjective. Ratio |
Regulation 7(3) requires that being of a particular religion or belief is not only genuine but also, as paragraph 2 of article 4 of the Directive shows, legitimate and justified. Ratio |
It follows that it is not sufficient that the employer has a genuine belief that the particular religion or belief is required. Ratio |
The requirement must also be legitimate and justified. Ratio |
It would be remarkable, in his submission, if the justification could be found in the personal opinions of the prima facie discriminator. Ratio |
I agree with Mr Davies that it is not for the court to sit in judgment on matters of religion or belief. Ratio |
However, I also agree with Mr Brindle that the test for justifying prima facie discrimination cannot be entirely subjective. Ratio |
This is because the Regulations must be construed consistently with the Directive. Ratio |
It seems to me to be reasonably clear that paragraph 1 of article 4 of the Directive is the source of paragraph (2) of regulation 7 because they both refer to a genuine and determining occupational requirement. Ratio |
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