The Employment Appeal Tribunal (EAT) has now confirmed that many of the traits implicit in caste status are protected from discrimination under the broad category of race in the Equality Act 2010 (EqA). The judgment in Chandhok v Tirkey lends support and momentum to the notion that discrimination in employment on the grounds of caste is unlawful under the EqA.
A domestic servant who was a member of the Adivasi caste and recruited from India to work in a household in Britain was subjected to unfavourable treatment, including excessive working hours and a failure to be paid the national minimum wage. She was also deprived of her passport, her Bible and refused the opportunity to attend church. Her claims included, among others, race discrimination and indirect religious discrimination.
The EAT ruled that the existing concept of ‘ethnic origin’, part of the definition of ‘race’ in the EqA, is sufficiently wide to encompass many of the characteristics of caste. Heritage or descent could be taken into account when determining whether an individual had been subject to discrimination on the grounds of ethnic origin within the race discrimination category. This ruling is despite the fact that the Government has yet to expressly incorporate caste into the EqA as a protected characteristic. The Enterprise and Regulatory Reform Act 2013 requires the Government to include caste within the EqA’s discrimination protections, but this has to date been delayed pending the public consultation process. The ruling effectively works around this issue by not expressly elevating caste as a protected characteristic. Instead, it assigns many of the elements of caste to the ‘ethnic origin’ subcategory under the definition of race – allowing individuals in many instances to bring claims under the umbrella of discrimination on the grounds of race. The claimant was awarded £183,773 in damages.
Relevance for employers
This case emphasises the need for employers to ensure that they are not directly or indirectly committing acts of caste discrimination in the recruitment process or during the course of employment. Examples include not making judgments about the suitability of a candidate or their work ethic based on their cultural or social heritage or inherited status, particularly where there is an association of this characteristic with race or ethnicity. Though the judgment stopped short of naming caste as a protected characteristic, the practical implication for employers is that they should nevertheless exercise considerable caution when dealing with possible situations of caste discrimination.
The Anti-Trafficking and Labour Exploitation Unit remarked: “This is a very useful judgement for victims of modern day slavery.” The ruling comes as businesses operating within the UK with a global turnover in excess of £36 million prepare to comply with their obligations under the Modern Slavery Act 2015, the relevant sections of which come into force this October.