Jivraj v Hashwani [2011] UKSC 40 (27 July 2011)
Citation:Jivraj v Hashwani [2011] UKSC 40 (27 July 2011)
Rule of thumb:If people are excluded from entry into an organisation based on their inherent features, is this legal? No. Any contract terms that are discriminatory and require certain people to excluded from a process based upon inherent characteristics they possess, such as their religion, age etc, rather than have a selection processes based on their technical skill & character, are void based upon the human right not to be discriminated against which is contra bonos mores.
Background facts:
The facts of this case were that there was an arbitration clause which stated that if there was a legal dispute then it should go to a panel of 3 independent arbitrators to decide the matter, but the clause stated that these arbitrators must be from the Ismaili community.
Parties argued:
One of the parties argued that this clause was contra bonos moros and in violation of the human right against discrimination. The other party argued that the people under this agreement had more confidence and trust in people this religious and people of this faith being the people put in place to decide would help a decision be reached.
Judgment:
The Court affirmed that a clause only requiring people of a certain background was valid for the initial part of the alternative dispute resolution process - mediation, however, this clause would not be valid if it related to arbitration which was a formal means of alernative dispute resolution, and at mediation the mediator should be the best person for the job regardless of faith or other inherent characteristics. The Court allowed this clause to stand for the mediation part of alternative dispute resolution but not the arbitration.
Ratio-decidendi:
‘78. Both these citations catch and support the essence of Lord Clarke’s distinction between persons under the direction of another and arbitrators who perform an independent role, free of such control... 82. Many English as well as other lawyers believe in, are trained in and are familiar with techniques for the amicable resolution of disputes, including conciliation, mediation and arbitration. The value of alternative dispute resolution, particularly mediation, is also recognised at the European legal level (see eg Directive 2008/52/EC of 21 May 2008 on certain aspects of mediation in civil and commercial matters and Council of Europe Recommendation No R(2002)10 on civil mediation). A religious or faith-based community’s or organisation’s power first to select and then to direct its own employed lawyers would be a secure means of ensuring that its employed lawyers valued, understood and prioritised the handling of English law work so far as possible on a non-confrontational basis, using alternative dispute resolution procedures wherever possible. A refusal to employ anyone other than a member of the particular religion or faith would in that context seem unlikely to be justified or proportionate’, Lord Mance
'a refusal to employ anyone other than a member of the particular religion or faith ... seem unlikely to be justified or proportionate', Lord Mance
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.