In Chandhok and another –v- Tirkey (UK EAT/0190/14), the Employment Appeal Tribunal (EAT) rejected an appeal to strike out a claim for caste discrimination, finding that the definition of ‘race’ in the Equality Act 2010 (the Act) does encompass caste discrimination.
Ms Tirkey was a domestic worker for Mr and Mrs Chandhok for four years until 2012. Her inherited caste is the Adivasi, which is recognised in Indian culture as the ‘servant caste’. Claims brought against the Chandhoks included unfair dismissal, unlawful deduction from wages and race discrimination. There was also a complaint of caste discrimination, in that Ms Tirkey was subject to less favourable treatment because of her perceived lower status. The Chandhoks applied to strike out the claim of caste discrimination on the basis that ‘caste’ does not presently fall within the definition of ‘race’ in Section 9 of the Act.
Section 9(5) of the Act was amended by the Enterprise and Regulatory Form Act 2013, which states that the Government “must by order amend Section 9 [of the Act] so as to provide for caste to be an aspect of race”. The Chandhoks’ argument was that, as it currently stands, the Act shows a deliberate omission of caste discrimination, although the Government is required to amend the Act to include express reference to it. It was not for Ms Tirkey to anticipate the wording or effect of future legislation by bringing a caste discrimination claim.
Despite this, the EAT (taking into consideration the decisions of R(E) –v- The Governing Body of JFS and the Admissions Appeal Panel of JFS and others  UK SC 15 and Mandla –v- Dawell Lee  UKHL 7) held that although caste is not yet explicitly mentioned in the Act, it does fall under the ‘ethnic or national origins’ wording of Section 9(1). The fact that the Government had decided to legislate further specifically to include caste discrimination, but had not yet done so, was not determinative of the issue.
This case serves to illustrate that caste can amount to an aspect of race, despite the wording of the Act not having been amended to date. Indeed, the judgment may pave the way for appeals on other decisions in which claims for caste discrimination have failed. A consultation on the inclusion of ‘caste discrimination’ in the Act is expected before any implementation, so this decision is welcome as an indication of the sort of protection that may be enjoyed in this interim period.