Hashwani v Jivraj could go to European Court of Justice

18 Sep, 2012

The Hashwani v Jivraj case, billed the most important UK case of 2011, could yet take another interesting turn as Mr Hashwani has complained to the European Union against the judgment of the UK Supreme Court, stating that the United Kingdom has infringed Article 267 of the Treaty on the functioning of the European Union.


Mr Hashwani’s case is that the UK breached its direct community obligations when it failed to refer to the European Court of Justice the important questions of Community Law which were raised in the case of Jivraj v Hashwani before giving Judgment in that case in its Supreme Court. Mr Hashwani’s primary complaint is that the Supreme Court failed to adopt the proper application and uniform interpretation of Council Framework Directive 2000/78/EC of 27th November 2000 in the United Kingdom.


The UK Supreme Court’s Judgment is primarily wrong, it is argued in the complaint, because in effect it allows parties to discriminate on the grounds of gender, race, sexual orientation and religion when selecting their providers of professional services. This result of the Supreme Court’s analysis raises serious technical objections. There are of course practicing arbitrators in the European Union who belong to different races, religions and sexual orientations. The ratio of the Supreme Court’s Judgment in principle places a serious and overreaching limitation on discrimination law by denying self-employed persons protection from discrimination.


Sarosh Zaiwalla, Senior Partner of Zaiwalla & Co LLP who have been solicitors for Mr Hashwani throughout this matter, said: “The Supreme Court Judgment is primarily wrong because it allows anyone to discriminate when deciding who provides their professional services. If an employer gives someone a job, they have to ensure that the recruitment process is fair and that the only basis for selection is ability. Thanks to this decision, so long as the ‘job’ is said to be a contract to provide services on a self-employed basis, an employer is within his rights to say openly, for example, ‘No blacks, Christians or gays.’ How can this be acceptable in today’s society?”


As Sir Richard Buxton, a former Judge of the Court of Appeal, rightly points out in his Notes published in The Law Quarterly Review: ‘the Supreme Court judgment appears to have given a surprising conclusion, that Community Law gives a licence to discriminate on the grounds of gender, race or sexual orientation in the selection of professional services.’ The implication of the Supreme Court Judgment is that it is now permissible in law to have an arbitration clause which prevents specified minorities from serving as arbitrators.


Mr Hashwani has sent a complaint to the European Commission asking it to examine whether the UK has infringed EU law in this matter. Mr Hashwani’s complaint has been  settled by counsel Mr Michael Brindle QC and Mr Brian Dye along with Zaiwalla & Co Solicitors.

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