It is unusual for a case by an Employment Tribunal to be reported, since published decisions tend to be by the higher courts. However Tirkey v Chandok and another has been widely reported as pre-empting a proposed change to legislation that is not expected to be made until after public consultation is completed in 2015.
The reason for reporting this particular decision was that the Tribunal decided to include “caste” in the definition of race in the Equality Act 2010 (the Act). As drafted, the Act does not refer to caste, but the definition of “race” is non-exhaustive and includes “colour; nationality; ethnic or national origin”. The use of “includes”, rather than “means”, itself means that there is scope for other attributes to be covered by “race”. One such attribute could be caste.
The caste system is a traditional social stratification, emanating from the Hindu tradition, which encompasses various “classes”, each of which is associated with a traditional occupation and ranked accordingly on a perceived scale of ritual purity. Caste status is immutable and hereditary, and is often linked to matters such as geographic origin and language. It is associated primarily with South Asia, particularly India.
The nature of caste means that there is an inherent risk of someone from one caste being treated less favourably than someone from another caste.
This case involved a domestic live-in servant who was employed by a couple to work for them originally in India, and then in the UK. She is part of the Adivasi caste, which is known as a “servant caste” and she brought numerous claims against the couple alleging poor treatment, including being required to work 7 days a week (6am to 12.30am), that she was not allowed to sit on the same furniture as the family, and was made to use separate crockery and cutlery, because higher caste people would not touch plates and cups that she had used. She claimed that the reason why she was recruited and treated in the manner alleged was that her employers concluded that she was of a lower status to them, and that this view was tainted by caste considerations.
The Employment Tribunal decided that the existing race discrimination provisions in the Act did cover caste, because “ethnic origin” for the purposes of the Act is a wide concept. This was despite an earlier Tribunal decision in which a caste discrimination claim was rejected, partly on the basis that the government had not yet activated the power in the Act to provide expressly for caste to amount to an aspect of race.
As the formal introduction of caste discrimination is delayed until after consultation has been completed (and in theory, there is a risk that the proposal to include caste as an element of race may not happen), this is a useful case. However, as it is only an Employment Tribunal decision, there is scope that it will be appealed, or not followed by a different Tribunal.