LEGAL CORER: Caste discrimination prohibited where it is an aspect of ethnic origin

30th Jan 2015

In early 2013 I wrote an article about the various attempts to prohibit discrimination on grounds of caste. Specific provisions in this regard have not as yet come into force. However, the Employment Appeal Tribunal have just issued a judgment in the case of Chandok v Tirkey UKEAT/0190/14 which specifically deals with this issue.

Ms Tirkey was employed by Mr and Mrs Chandok as a nanny. She worked for them initially in India, and then moved with them to the UK where she continued her work until her employment came to an end in 2012. She brought a claim against her former employers in the employment tribunal for discrimination on the grounds of race and/or religion, alleging that she had been treated in a demeaning way throughout her employment. Thereafter, she amended her claim to allege that the reason for the alleged treatment was also on the grounds of her ethnic origin, which is a subsection of race as described in the Equality Act 2010.

She went on to explain that her claim for discrimination on the grounds of her ethnic origin included her status in the caste system as perceived by her former employers and that her treatment by them was a result of their view that Ms Tirkey was of a lower status than them.

Mr and Mrs Chandok applied to the tribunal to have this amendment struck out on the basis that there was no protection from discrimination on grounds of caste in the Equality Act 2010. They pointed to the fact that the Enterprise and Regulatory Reform Act 2013 included specific provision for a minister of the crown to carry out a review of the Equality Act and to then enact legislation to prohibit discrimination on grounds of caste if appropriate. They therefore argued that to allow a claim for caste discrimination to proceed would be to ‘oust’ the will of Parliament.

The employment tribunal declined this application and Mr and Mrs Chandok appealed that decision. The Employment Appeal Tribunal (EAT) considered the fact that when assessing a claim of race discrimination, this includes not just claims on grounds of race per se, but also claims based on colour, nationality, and ethnic or national origin. The emphasis of ‘origin’ in a claim based on ethnic origin clearly included an analysis of ‘descent’, and the issue of descent was often interlinked with the perception of caste. The EAT agreed with the notion that if Mr and Mrs Chandok had perceived Ms Tirkey as lower caste because of her ethnic origin, then that meant that her claim fell within the ambit of the Equality Act 2010 as it currently stood, without the need for any amendments to be enacted.

Ms Tirkey will therefore be able to proceed with her claim of race discrimination, and it remains to be seen whether, on the basis of the evidence, an employment tribunal concludes that she was in fact discriminated against because of her former employer’s views of her caste as part of her ethnic origin.

This case does not widen the ambit of the Equality Act to include all claims for caste discrimination. The issue of caste includes not just ethnic origin but also comprises soci-economic issues, occupation, class, etc. But where a claim is based on caste as an aspect of ethnic origin, and the evidence supports that argument, then a claim made on this basis may succeed.

I therefore reiterate the advice that I have given previously in this regard: employers need to be careful to ensure that their employees are not discriminated on grounds of caste, and employees who feel that they are being discriminated in this way need to consider if the alleged discrimination relates to their caste as an aspect of their ethnic origin – because if it does, this case makes clear that they will be able to seek recourse in the employment tribunal.

Safia Tharoo, Barrister, 42 Bedford Row

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