Race discrimination: Ethnic origin is wide enough to include caste
Published 6 January 2015
In this case the EAT considered whether a claim, which included allegations that the Claimant was treated badly in part because of her low status and caste, should have been allowed to continue.
Ms Tirkey, the Claimant, worked for Mr and Mrs Chandhok between 2008 and 2012 as a domestic worker. Ms Tirkey claimed that the Chandhoks had treated her badly and in a demeaning manner, and by amendment to her ET1 that this was because of her ethnic and/or national origins, which included her status in the caste system as perceived by the Chandhoks. The Chandoks applied to strike out this amendment on the basis that caste did not fall within the definition of the protected characteristic of race contained in the Equality Act 2010. An employment tribunal rejected the strike out application. The Chandhoks appealed to the EAT.
The EAT dismissed the appeal and permitted the claim to proceed to a full hearing in the employment tribunal. In doing so it noted that Ms Tirkey had not bought a separate claim for caste discrimination. She did not say in the claim form that she belonged to any caste, nor did she give any particulars which would have made her recognisable as a caste member. The EAT decided that what Ms Tirkey was saying was that her perceived caste was bound up factually with the Chandhoks' perception of her ethnic origins. Having analysed the case law, the EAT found that the meaning of ethnic origin is wide and flexible in scope and that descent, which is closely linked to caste, can clearly be included within it. Therefore the fact that caste is not currently specifically mentioned in the Equality Act 2010, and that the Government may remedy this but has not yet done so, did not mean such a claim could not proceed under the law as it currently stands. The EAT noted that Ms Tirkey's full case at the employment tribunal would stand or fall by whether she could establish that her treatment more than minimally included the Chandhok's view of her status or origins, which were bound up with her ethnicity. If she could do this her claim would succeed, regardless of a label of caste or low status.
What this means for employers:
This case makes it clear that where caste is linked to ethnicity it can be protected as an aspect of race discrimination. As the Government's expected consultation on making caste discrimination unlawful has been delayed, and therefore any legislative change is also likely to be delayed, it is useful to have this clarified. Employers who are aware that they have people of different castes working for them will need to be mindful of this protection when dealing with any grievances, or claims alleging less favourable treatment relating to ethnicity.