In recent years, there have been calls for the government to create a new category of discrimination to encompass caste. This was expected to be officially introduced in summer 2015. However, the recent employment tribunal case of Tirkey v Chandok [2013] saw the Tribunal take matters into its own hands by deciding that caste already falls within the existing definitions of protected characteristics under the Equality Act 2010.
Background
The Caste system is generally (but not exclusively) associated with south Asia, in particular India, and can include Hindu, Sikh, Christian, Muslim or other religious groups. Castes are a form of social stratification, which are inherited and fixed at birth. An individual's caste is now often linked to matters such as their geographic origin and language.
Facts
The Claimant, Ms Tirkey, was employed by the Respondents, Mr and Mrs Chandok, as a live-in domestic servant for four years during which time she was paid around only £3,140 in total and given only one day's holiday. She was of the Adivasi people, which are known as a servant caste among those of the Hindu religion. During her employment, Ms Tirkey was forced to work long hours from around 6am to 12.30am, prevented from leaving the family home, making it impossible for her to attend church, and she was made to sleep on the floor. In addition to this she was not allowed to use the same furniture as the family and was made to use different cutlery, as people from a "higher caste" refused to touch the cutlery she had used.
Ms Tirkey brought several claims including unfair dismissal, race discrimination, religion and belief discrimination, unpaid wages and holiday pay. In addition to these, she sought to add caste discrimination to her race discrimination claim, or alternatively as part of her religious discrimination claim. Her argument was that the Respondents recruited and treated her in the manner they did because they considered her to be of a lower status due to her caste. As there was no legislation in place outlawing caste discrimination, the Respondents attempted to have this aspect of Ms Tirkey's claim struck out.
Decision
The Judge acknowledged the government's plan to legislate in this area, but concluded that the tribunal's role was to decide whether the law, as it currently stands, allowed Ms Tirkey to bring a claim for caste discrimination. The Judge dismissed the strike out application and allowed the claim to proceed for the following reasons:
i. Ms Tirkey's Adivasi status was inextricably linked with her case on race and religious discrimination;
ii. there was no comprehensive and exhaustive definition of race in the Equality Act 2010 but it included ethnic origin, which was a wide concept. As such, it was arguable that caste was included in the protected characteristic of race; and
iii. Ms Tirkey alleged that she was viewed as a lower caste by birth and past case law supported the suggestion that discrimination on the grounds of descent was direct race discrimination.
Comment
This issue had originally been shelved until summer 2015, but this case puts caste discrimination back in the spotlight. There is a possibility of appeal, on the basis that the earlier case of Aslam held that caste discrimination was not actionable. In the meantime, employers should consider what steps they can take to protect themselves from potential claims. Any allegations or grievances based on unfair treatment due to caste should be fully investigated and treated no differently from any other allegation of race or religious discrimination. It is also not too early to consider updating internal employment documentation, such as equal opportunities policies, to take account of this emerging area of potential discrimination.
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