In the case of Tirkey v Chandok and another , an Employment Tribunal considered whether that the existing definition of “race” within the Equality Act 2010 was wide enough to capture discrimination on the basis of caste.
The current definition of race under Section 9(1) of the Equality Act 2010 includes the protected characteristics of colour, nationality and ethnic or national origin. Whilst caste is not expressly stated to be a protected characteristic, case law has indicated that “ethnic origin” should be interpreted broadly and therefore, there is scope to argue that it already covers caste discrimination. The government has indicated its intention to legislate on the issue of caste discrimination, following a public consultation, although such legislation is not expected until 2015.
Ms Tirkey was employed as a domestic servant by Mr and Mrs Chandok between 2008 and 2012. Ms Tirkey is part of the Adivasi caste, which is considered a low caste in certain cultures and has been equated with the Dalits (known at one time as “untouchables”).
Ms Tirkey brought claims against Mr and Mrs Chandok for, amongst other things, race discrimination and religion and belief discrimination. The basis of these claims was that Ms Tirkey alleged that Mr and Mrs Chandok required her to work seven days a week from 6am to 12.30am and that she was only allowed one day of holiday over the period between 2008 and 2012. She alleged that she had been prohibited from sitting on the same furniture as Mr and Mrs Chandok’s family, and could not use the same crockery and cutlery as those used by members of higher castes. Ms Tirkey alleged that her caste formed an integral part of the reason why she was treated in the manner she had alleged by Mr and Mrs Chantok as they were members of a higher caste, and that less favourable treatment because of caste was a form of either race or religious discrimination.
Mr and Mrs Chandok denied these allegations and applied to have this aspect of Ms Tirkey’s claim struck out on the basis that it had no reasonable prospect of success. They argued that caste discrimination is not unlawful and, therefore, an Employment Tribunal did not have jurisdiction to hear the claim.
The Employment Tribunal held that Ms Tirkey’s claim for caste discrimination should be allowed to proceed and the strike-out application was dismissed. The reasoning for this decision was as follows:
- The definition of race under Section 9(1) of the Equality Act 2010 was not comprehensive, nor exhaustive. “Ethnic origin” forms part of race and is of itself a wide concept that already covers “caste”. Domestic case law (particularly the cases of Mandla v Dowell Lee  and R on the application of E v the Jewish Free School ) provides authority for the proposition that discrimination on the basis of descent is unlawful, and as caste is a matter of birth and cannot be changed, caste discrimination is included within the definition of race.
- Equally, the definition of discrimination in Article 14 of the European Convention on Human Rights is wide enough to encompass caste discrimination. As the Human Rights Act 1998 requires that primary legislation in the UK be read and given effect in a way that is compatible with Convention rights, the Tribunal concluded Equality Act 2010 could be and should be read in such a way as to protect against caste discrimination.
- The Tribunal also gave consideration to the EU Race Directive (2000) which includes discrimination on the grounds of descent within its definition of race discrimination; in the Tribunal’s view , if the Equality Act 2010 did not cover caste discrimination, the Equality Act 2010 would not fully implement the provisions of the Race Directive.
- Finally, the Employment Tribunal concluded that the Government’s decision to legislate in order to expressly provide for caste to be a protected characteristic under Section 9(1) of the Equality Act 2010 did not preclude a claim for caste discrimination from proceeding under the current law.
The decision in this case is not entirely unexpected. The definition of race in the Equality Act 2010 is not exhaustive and on the basis of EU law and domestic case law, there is an argument, notwithstanding the government’s intention to legislate on the issue, that caste discrimination is already covered by existing legislation.
However, in the case of Naveed v Aslam and others , an Employment Tribunal held that a claim of caste discrimination could not be brought as the government had not yet provided for caste discrimination to be a protected characteristic under the Equality Act 2010 and therefore the Tribunal did not have jurisdiction to hear such a claim.
Whilst we now have two conflicting first instance decisions (although the Naveed case may be appealed to the Employment Appeal Tribunal), the most recent of the two may well encourage claimants to bring caste discrimination claims in advance of the government’s expected legislation. If any such claims reach appeal level they will establish case law in advance of the government’s legislation; this could add additional complexity to an already complicated area which the government had hoped to clarify through legislation first.
Tirkey v Chandok and another 24 January 2014