In the recent case of Chandhok and another v Tirkey [UKEAT/0190/14], the Employment Appeal Tribunal (“EAT”) considered whether to strike out a caste discrimination claim on the basis that caste is not expressly stated to be a protected characteristic under the Equality Act 2010 (“EqA”).
Ms Tirkey was employed by the Chandhoks as a domestic worker during the period 2008 to 2012. Ms Tirkey was part of the Adivasi caste (known as the “servant caste”) which was recognised as one of the lowest ranked classes in the caste system.
Ms Tirkey claimed that she worked for the Chandhoks between 6am and 12.30am seven days a week, she was made to sleep on a foam mattress on the floor and she could not share cutlery or crockery with the Chandhoks. Ms Tirkey alleged that the Chandhoks treated her poorly because of her caste.
Following her dismissal, Ms Tirkey brought claims in the Employment Tribunal (“ET”) against the Chandhoks for unfair dismissal and discrimination on the ground of race (or religion in the alternative).
The Chandhoks applied for the discrimination claim to be struck out on the basis that there is currently no legislation outlawing caste discrimination, therefore Ms Tirkey’s claim had no reasonable prospect of success.
The ET allowed the claim for caste discrimination to proceed after ruling that the definition of "race" in the EqA is non-exhaustive and is wide enough to encompass caste because caste is dictated by birth and cannot be changed.
The Chandhoks appealed against the ET decision on the following grounds:
- As the government is under an obligation to amend the EqA to include caste discrimination as an express protected characteristic (in accordance with the Enterprise and Regulatory Reform Act 2013) but it has yet to do so, Parliament must have intended that caste should not be included under the definition of race discrimination (or religious discrimination in the alternative). Further the ET could not rely upon future legislation which was not yet in effect.
- The European Community Race Directive (“EC”) was inapplicable because Ms Tirkey’s claim was brought against individuals and not the state.
- The case could be distinguished from previous “ethnic origin” cases as the relevant legislation in these cases was the Race Relations Act 1976 and not the EqA.
The EAT dismissed the appeal on the basis that under current law, race discrimination includes discrimination based on ethnic or national origins and caste discrimination would usually fall under this category. The EAT also pointed out that the government’s intentions to clarify the legislation in respect of caste discrimination does not prevent courts and tribunals from considering caste discrimination claims as race discrimination claims.
This case is a reminder that it is already widely accepted that discrimination because of caste, descent and ethnic origin is unlawful and can constitute direct race discrimination.