In the recent case of Chandhok and another v Tirkey, the Employment Appeal Tribunal ("EAT") rejected an appeal to strike out a claim for "caste" discrimination, holding that the definition of race in the Equality Act 2010 ("EqA 2010") could include facts relevant to caste.
The case concerned the treatment by Mr and Mrs Chandhok of Mrs Tirkey, a domestic worker, over a four year period. Ms Tirkey's inherited caste is the Adivasi, which is recognised in Indian culture as the 'servant caste'. Ms Tirkey alleged that she had been treated less favourably because of her perceived lower status, and following her dismissal she brought a number of claims, including unfair dismissal, unlawful deduction of wages, race discrimination and discrimination based on her ethnic origins, which she stipulated included (but was not limited to) her status in the caste system as perceived by Mr and Mrs Chandhok.
Currently "caste" is not an express "protected characteristic" under the EqA 2010. However as the definition of "race" in section 9 of the EqA 2010 is non-exhaustive and includes colour, nationality, ethnic or national origin, the issue for the Tribunals was whether caste fell under the concept of "race".
Mr and Mrs Chandhok's case was that, as caste was not included in the definition of race, the discrimination claim relating to caste should be struck out.
The EqA 2010 section 9(5) provides that a Minister of the Crown must by Order amend section 9 (definition of race) to provide for "caste" to be an aspect of "race", but this to date has not been done. The Chandhoks therefore argued further that, as the EqA 2010 currently stood, there was a deliberate omission of caste discrimination, and it was not for Ms Tirkey to speculate what wording or effect any future Order may have by bringing a caste discrimination claim.
The EAT stated that section 9(5) was not determinative, but was a power to supplement or clarify section 9(1). It was therefore a matter for the courts, using the tools at their disposal, to identify the meaning and understanding of Parliament when it enacted the legislation. The EAT also cited previous cases which have given "ethnic origins" a wide and flexible meaning and provided for discrimination on the basis of descent to be included in the definition of "ethnic origins" where descent is linked to concepts of ethnicity. The EAT therefore decided that, although caste is not specifically listed under section 9(1) (and despite the wording of section 9(5)), facts relevant to caste could fall within the definition of "ethnic or national origins", which is specifically included in the definition of race and therefore protected.
The EAT therefore refused to strike out Mrs Tirkey's claim and gave her the opportunity to argue a claim of race discrimination on the basis of facts which could be described as caste considerations if they came within the heading of "ethnic or national origins".
The case shows that caste, linked to ethnic or national origins, can amount to an aspect of race (despite the fact that the wording of the EqA has not yet been amended to specifically include caste).
Employers should be wary to rely on specific wording in the EqA to exclude areas of protection, as this case demonstrates that the EAT may well interpret it to encompass new areas that have not previously been considered to be under the protection of the EqA. Employers should also take this case as a reminder that the law on discrimination is continually developing and it is important to have genuine business reasons for decisions that may affect particular groups more adversely than others.