Labour & European Law Review Weekly Issue 409 04 March 2015
Although discrimination on the basis of a person’s “caste” is not specified within the Equality Act 2010, the Employment Appeal Tribunal (EAT) held in Chandok v Tirkey that it could still be held to be discrimination if it fell within the heading of the protected characteristic of “ethnic origins” in section 9(1)(c) of the Act. .
Ms Tirkey, an Indian national, was recruited by Mr and Mrs Chandhok to work as their nanny in India and subsequently the UK until her employment ended in November 2012.
She brought claims of direct and indirect race discrimination and harassment as well as discrimination on the grounds of religion or belief, arguing that she was “treated in a demeaning way, such that she was more in a state of servility than service”. She then amended her claim to make clear that her ethnic and/or national origins included her status in the caste system, arguing that the Chandhoks treated her the way they did because she was of “lower status” to them.
The Chandhoks applied to strike out her case on the ground that “caste” did not fall within the definition of “race” in section 9 of the Equality Act.
Section 9(1) states that race includes (a) colour, (b) nationality, and (c) ethnic or national origins.
Section 9(5) states that a Minister of the Crown may amend this section to include “caste” as an aspect of race.
The judge dismissed the application to strike out the claim on the basis that the definition of race in section 9 was not exclusive. Instead he held that it was “inclusive” as it included ethnic origin and it could be argued that “caste” insofar as it was an aspect of “ethnic” origin was covered by the law.
He also pointed to domestic case law which established that discrimination “by descent” was unlawful on the basis that it constituted direct race discrimination. Ms Tirkey’s claim that she was lower caste by birth and therefore descent was within these legal provisions and could be heard.
The EAT held that the principles expressed in case law required courts to give “wide and flexible scope” to the meaning of “ethnic origins”.
Although “caste” as an autonomous concept was not currently specified within section 9(1), it held that many of the facts relevant in considering caste could fall under the heading of “ethnic origins” in section 9(1)(c), including characteristics determined by “descent”.
To succeed, Ms Tirkey therefore had to show that she was treated less favourably because of “caste considerations” which fell under the heading of “ethnic or national origins” in section 9(1)(c). If she could not show that at least part of her treatment fell within section 9(1)(a), (b) or (c), then irrespective of any assertions that she was of a particular caste, her claim would fail.
The concept of “ethnic origin” in the Equality Act 2010 is wide and flexible. It is capable of dealing with changing attitudes to discrimination. This is some consolation following the announcement that there will be no law introduced prohibiting caste discrimination separately from race and ethnic origins.