In Chandhok and another v Tirkey, the EAT considered whether a claim for caste discrimination should have been allowed to continue, despite the government not yet having prohibited caste discrimination under the Equality Act 2010.
Ms Tirkey worked for Mr and Mrs Chandhok between 2008 and 2012 as a domestic worker. Her Caste is the Adivasi, which is known as a "servant caste". Ms Tirkey claimed that the Chandhoks treated her badly and in a demeaning manner, and (by amendment) that this was in part because of her low status which was infected with considerations of caste.
The employment judge considered the broad definition of “race” under section 9(1) of the Equality Act which includes “colour; nationality; ethnic or national origin” to be non-comprehensive and non-exhaustive with “ethnic origin” being wide enough to include caste. 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.
Having regard to the Human Rights Act 1998, the Equality Act 2010 must be read and given effect in a way that is compatible with the European Convention on Human Rights. Article 14 of the ECHR prohibits discrimination “on any grounds such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”. The employment judge ruled that this definition was wide enough to include “caste”.
The employment judge held that Ms Tirkey could bring a claim for caste discrimination on the law as it currently stands. Despite caste not yet separately being mentioned in the Equality Act 2010, it falls under the "ethnic or national origins" limb of race in section 9(1) of the Equality Act 2010. There may be factual circumstances involving caste which are capable of falling within the scope of section 9(1) of the Equality Act 2010.
While anti-caste campaigners have welcomed this landmark judgment, it is not binding due to being a first instance decision. In the earlier case of Naveed v Aslam , the tribunal gave a conflicting ruling and rejected the claim for caste discrimination on the grounds that the Government has not yet exercised its power to amend section 9 of the Equality Act to include caste under the definition of “race”. It is therefore crucial in light of the recent decision that the Government legislate on the matter in order to define the scope of caste discrimination with more certainty.
If you have questions relating to discrimination, contact a member of our Employment Team on 01279 755777.