Anti-caste campaigners have welcomed an Employment Tribunal ruling that caste discrimination is protected under the Equality Act 2010.
The caste system is a historical concept that is traditionally rooted in the Hindu community in India, but is also found in other parts of Asia, Africa and the Middle East. The caste system divides people into separate groups based on birth, marriage and occupation. Its effect is to create a hierarchy within a community.
Discrimination against caste is illegal in India and campaigners in the UK have been calling for the UK Government to outlaw caste discrimination on the basis that people in the UK, such as the Dalits (also known as “untouchables”), have suffered abuse and prejudice simply because of their caste. In April 2013, after two defeats in the House of Lords, the Government made a U-turn and announced that caste must be included within the definition of “race” (a protected characteristic under the Equality Act). Accordingly, section 9 of the Equality Act must be amended. However, the Government has stalled in going ahead with this amendment and has announced that the consultation and legislative process is expected to last until summer 2015.
Notwithstanding the Government’s delay, an Employment Tribunal has decided that the Equality Act already prohibits caste discrimination in Tirkey v Chandok and another by allowing a claim for caste discrimination.
Ms Tirkey was employed by Mr and Mrs Chandok as a domestic servant originally in India and then in the UK. Ms Tirkey is of the Adivasi caste, known as a “servant caste” and usually likened to the Dalits. She brought a claim against the Chandoks for unfair dismissal, unpaid wages and race discrimination (amongst other things). She also added a complaint for caste discrimination, claiming that she was subject to less favourable treatment because the Chandoks considered her to be of lower status, and that this view was tainted by caste discrimination. The Chandoks applied to strike out the complaint of caste discrimination arguing that it had no reasonable prospects of success and that it would not be in the interests of justice to allow the claim as there was no legislation outlawing caste discrimination.
The Employment Tribunal dismissed the Chandoks’ application for strike out and allowed Ms Tirkey’s claim for caste discrimination to proceed for the following reasons:
- 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.
- Domestic case law provides authority for the proposition that discrimination by descent is unlawful (R on the application of E v The Governing Body of JFS and the Admissions Appeal Panel and Others; Mandla v Dowell Lee).
- 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 Race Directive was intended to give effect to the International Convention for the Elimination of all forms of Racial Discrimination 1965 (ICERD). The ICERD (to which the UK is a signatory) prohibits discrimination on the grounds of descent.
The fact that the Government has yet to legislate on caste discrimination was not a determinative factor. The Employment Tribunal was satisfied that, as the law currently stands, discrimination based on caste is prohibited.
While this landmark judgment has been welcomed by anti-caste campaigners, it is a first instance decision and therefore not binding. It should also be noted that another tribunal has given a conflicting ruling in the earlier case of Naveed v Aslam, where the tribunal rejected a claim for caste discrimination on the basis 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”. There does therefore seem to be a need for Government to legislate on the matter and to define the scope of caste discrimination with more certainty.