Regulations to confirm this position are in the pipeline

In the recent case of Tirkey v Chandok, the Employment Appeal Tribunal (EAT) had to decide whether to strike out a claim for 'caste' discrimination.

Tirkey was a nanny, originally employed in India and then later in the UK by the same family until her employment ended in November 2012. Both she and her employers were Indian. She claimed she suffered discrimination by her employers because she was part of the Adivasi people or 'servant caste', considered to be of a lower status to that of her employer.

Tirkey originally claimed compensation for direct and indirect race discrimination, harassment, and discrimination on the grounds of religion or belief. There was no reference to caste discrimination. In May 2013, her claim was amended to say primarily that the treatment she received was because of her ethnic or national origins, combining those aspects with status, caste, and descent. Because the claim now said Tirkey was discriminated against specifically because of her caste, the employer applied to the tribunal to have it struck out on the grounds that caste was not covered by the Equality Act 2010.

The employment tribunal judge dismissed the employer’s application holding that the definition of race in the Act (Section 9.1) included colour, nationality, ethnic or national origin. He argued that caste was an aspect of ethnic origin and so was already included within the race definition. In addition, case law, most recently the case R(E) v Governing Body of JFS [2010] made clear that discriminating against someone because of his or her descent was direct race discrimination. 
The employer appealed on the basis that if Parliament had intended for caste to be a protected characteristic it would have been expressly included within the Act. The employer also pointed out that there is explicit wording within the Act to allow regulations to be introduced making caste a separate, protected characteristic, indicating that it was not, as yet, covered by law.

The Employment Appeal Tribunal noted that the Act’s reference to ethnic origins covered questions of descent, and in some situations could also encompass caste. The fact that there was no single definition of 'caste' did not mean it wasn’t included in 'ethnic origins'.  The EAT concluded that having provisions within the Act to include caste in the future did not mean that it was not already covered. Since caste could come within the definition of race under the Act, the claim could not be struck out without the full facts being heard. The case can now proceed to a full hearing.

The EAT has taken a cautious approach here in holding that the Equality Act’s 'ethnic origins' is broad enough to encompass characteristics determined by descent, which could include caste.

The government has said it intends to make caste a protected characteristic under the Act, although we are unlikely to see new regulations before the general election. This decision could make new legislation unnecessary as it will allow some claimants to pursue claims for caste discrimination. However, there may still be a need in the future to define the scope of caste discrimination with more certainty.

Nicola Ihnatowicz is an employment partner at Trowers & Hamlins

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