Statute changes not due until 2015 but law is already moving in this direction
There has been a debate in recent years over the extent to which caste is a protected characteristic under the Equality Act 2010. A recent employment tribunal case, Tirkey v Chandok (ET/3400174/13), has supported the view that caste discrimination should fall within the definition of ‘race’ as set out in the Act.
Discrimination
Under the Act, an individual is protected against certain types of discrimination and on the grounds of specific protected characteristics. While caste is not currently one of the protected characteristics, it has been argued that it falls within the definition of race as set out in section 9 (1). This section says that race includes colour, nationality and ethnic or national origin.
Caste
While there is currently no legal definition for caste, the explanatory notes to the Act define it as:
- a hereditary, endogamous (marrying within the group) community associated with a traditional occupation and ranked accordingly on a perceived scale of ritual purity
- it is generally (but not exclusively) associated with south Asia, particularly India
- it can encompass the four classes of Hindu tradition; thousands of regional Hindu, Sikh, Christian, Muslim or other religious groups known as jatis; and groups among south Asian Muslims called biradaris.
Castes are social groups where rights are fixed and inherited at birth.
Facts
Tirkey was employed by the Chandok family for four years as a domestic servant. She was responsible for the care of the family’s children and for household jobs. She was of the Adivasi people, which are known as a servant caste among those of the Hindu religion. During the course of her employment she was forced to work from 6 am until 12.30 am, she was given a piece of foam on the floor to sleep on and was not allowed to leave the family home. Tirkey claimed she was overworked and underpaid, and that she was treated in this manner because the family believed she was of a lower status to them.
Tirkey brought a number of claims against her employer which included complaints of unfair dismissal, race discrimination, religion and belief discrimination, unpaid wages and holiday pay, and subsequently wished to add a caste discrimination complaint to her race discrimination claim. The employer applied to strike out the caste claim on the basis that the employment tribunal had no jurisdiction to consider it.
Tribunal
The employment judge dismissed the employer’s application to have the caste claim struck out and allowed the race claim, as amended, to proceed. The judge decided that caste was already a part of the race protected characteristic because ethnic origin could include discrimination on the grounds of descent or lineage. Tirkey's case was that she was of lower caste by birth (in other words, by descent) and as such was unable to change her position in society. The employment judge concluded that the definition of race could and should be construed in such a way as to include caste. The case will now proceed to an employment tribunal where the entirety of Tirkey's claims will be considered.
Comment
Technically, as a first instance decision, the case is not binding on other tribunals and courts but it is a clear indication that the law is moving in the direction of the view that caste is covered by the Equality Act even though this is not currently reflected in the statute. There are provisions in the Act for caste to become protected as an aspect of race discrimination in its own right but it is not anticipated that this will be implemented until the summer of 2015.
In the meantime, employers facing grievances should approach claims of caste discrimination as they would any other race discrimination claim.
Charlotte Doherty is a trainee and Paul Mander is head of employment at Penningtons Manches
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