In the recent employment tribunal case of Tirkey v Chandok and another (ET/3400174/2013) the judge held that caste already falls within the protected characteristics under the Equality Act 2010 (the Act), despite the fact that section 9(5) of the Act - which provides for caste to be made a protected characteristic under the Act - has not yet been implemented. The Government has indicated that a public consultation needs to take place before this happens so it is unlikely that caste discrimination will be prohibited under the Act until at least summer 2015.
Ms Tirkey (the claimant) was employed by the respondents, Mr and Mrs Chandok, as a domestic servant. She was hired in India and stated that her new employers were aware from their first meeting that she was of a low caste because of her darker skin tone and Bihari dialect. She was asked about her caste at interview but said that the respondents were already aware that she was of a lower caste than them, as she was not invited into their house.
The claimant is an Adivasi German Christian. Historically the Adivasi have been outside the Hindu caste system but they are in fact treated as being of the lowest caste, akin to the Dalits, the so-called untouchables. In recognition of the extreme discrimination suffered by members of these two castes, special protections were set up under the 1950 Indian Constitution but the protection is lost upon conversion to Christianity.
After the claimant's employment commenced she lived in separate quarters to the family and slept on the floor, or on a foam sheet, near their children. She was not allowed to speak to visitors except to ask how they were, she was not allowed to use the same furniture as her employers or their guests and she had to use different crockery. She was not permitted to attend church, to bring her bible to the UK or to manifest her religion in any way. Her passport was withheld and she was forced to work in breach of the Working Time Regulations, with extremely long hours and only one day of annual leave in her entire employment of four and a half years. She was also so poorly paid that her schedule of loss included £175,000 in unpaid wages.
The claimant brought claims for unfair dismissal, race discrimination, religion and belief discrimination, unpaid wages and holiday pay. At a case management discussion, she was allowed to amend her particulars of claim to include caste discrimination as part of her race discrimination or religion and belief discrimination claim.
Employment tribunal decision
There was a preliminary hearing to decide whether the claimant's claim of caste discrimination should be struck out, on the basis that it had no reasonable prospects of success, or whether it could proceed to a merits hearing.
The tribunal judge found that the claimant's Adivasi status was inextricably linked with her case on race and religious discrimination. He also found that there was no comprehensive and exhaustive definition of race in the Act but that it included ethnic origin, which was in itself a wide concept. It was therefore arguable that caste already came within the protected characteristic of race under the Act. The tribunal judge found authority in previous case law for the proposition that discrimination on the grounds of descent was direct race discrimination. The claimant claimed to be identified as lower caste by birth and therefore by descent so she had a possible claim of direct race discrimination. Her claim was therefore allowed to proceed.
This case is very interesting because it demonstrates willingness by the tribunal to expand the protected characteristics under the Act to include caste, even where the Government has not yet elected to make caste discrimination unlawful. The Government has made it clear in section 9(5) of the Act that it is prepared for the possibility of making caste a protected characteristic but that it would not do so without full public consultation. The tribunal decided that consultation was unnecessary, the characteristics of caste being such that it is already covered under the protected characteristic of race.
This is an employment tribunal decision so it is not binding. It will be interesting to see whether it is appealed and, if so, what the EAT decides. The EAT may take the more orthodox position of stating that caste has been identified as a separate and distinct area of potential discrimination and that it is obliged to wait for the Government to invoke section 9(5).
In the meantime we have an interesting new development in discrimination law, as the definition of race has been expanded. With the caste system playing such an intrinsic role in the cultural life of South Asia and other similar societies, it will be interesting to see whether this decision will lead to a raft of claims from those whose status, and therefore their treatment at work, has been defined by their inherited place in the caste system.