Is caste discrimination unlawful? Currently the jury is out.
The recent preliminary hearing of an employment tribunal case called Tirkey v Chandok and another has re-focussed attention on the issue of caste discrimination. Ms Tirkey was in domestic service with Mr and Mrs Chandok, having moved to the UK with them from India. She alleges that she was overworked and underpaid, sleeping on a piece of foam on the floor, working from 6am to 12.30am and paid approximately £3,140 throughout her four and a half years’ employment with just one day’s annual leave.
Having originally claimed unfair dismissal, race discrimination, religion and belief discrimination, unpaid wages and holiday pay, Ms Tirkey was then given permission to add a complaint of caste discrimination asserting that the reason she was recruited and treated in the manner alleged was that “the Respondents concluded she was of a lower status to them: this view was tainted by caste considerations”.
The Chandoks argued the caste discrimination claim had no reasonable prospect of success because the tribunal had no jurisdiction to consider it. Their argument stemmed from the fact that caste is not a protected characteristic explicitly covered by the Equality Act 2010. Race discrimination clearly is covered, however, with race being defined (non-exhaustively) as including colour, nationality, ethnic or national origin.
In this case the tribunal concluded that the definition of race in the Equality Act 2010 and the concept of ethnic origin in that context are in fact broad enough to include caste. In the tribunal’s view, caste discrimination amounts to discrimination on grounds of descent, which previous cases such as E v The Governing Body of JFS and Mandla v Dowell Lee established is direct race discrimination and hence unlawful.
The confusing thing is the backdrop to this decision. When the Equality Act was debated in parliament a provision was added giving the government the power (but not the obligation) to provide specifically that caste is an aspect of race, thereby clarifying this uncertainty. So far however that power has not been used, and it was partly for this reason that another tribunal in the 2011 case of Naveed v Aslam and others reached the opposite conclusion to Tirkey and rejected a caste discrimination claim.
After two defeats in the House of Lords the government has now committed to making this legislative change, but confirmed last July that there would be a full public consultation before it came into force “to improve employer understanding and ensure the legislation is appropriate and fit for purpose”. A draft order is currently therefore expected, but not until next summer.
The current position is therefore rather unsatisfactory for all concerned. We know the law is going to be changed but do not yet know the all important details. We also know that, in the meantime, different tribunals are reaching different conclusions as to whether the existing law is broad enough to cover caste even without the proposed amendment. Neither tribunal decision is binding and as yet there is no appellate level decision to settle the debate.
Employment law changes so frequently that keeping abreast of the latest position is a serious challenge in itself. I wonder if some employers are aware that the Equality Act does not yet specifically include caste discrimination but unaware of this case (which received relatively limited coverage) and hence the scope for claims nevertheless. Employees without ready access to employment advice are likely to be even more confused.
Out of uncertainty often arises a dispute and, whilst the alleged facts of this case are fairly extreme, it is not hard to envisage the scope for more. Cases are always fact dependent, but my money would be on the next tribunal following Tirkey rather than Naveed. Employers would be well advised to treat allegations of caste discrimination as if Equality Act principles already apply.