Business Law & Compliance
Protection from caste discrimination – a new chapter in equality law
10 min read
21 October 2014
From 2015, caste will be regarded in law as forming part of the ‘protected characteristic’ of race within the Equality Act 2010. Workers or employees who believe they have suffered discrimination and/or harassment at the hands of their employer on account of their caste will be able to bring a race discrimination claim in the employment tribunal.
The timetable for action follows a study into the prevalence of the issue, which was commissioned in 2010, and is hot on the heels of the UK employment tribunal case of Tirkey –v- Chandok ET/3400174/2013. This case held that the definition of race in the Equality Act 2010 is wide enough to encompass caste.
What does “caste” mean?
The Oxford Dictionary (online) suggests that caste originates from:
“Mid 16th century (in the general sense ‘race, breed’): from Spanish and Portuguese casta ‘lineage, race, breed’, feminine of casto ‘pure, unmixed’, from Latin castus, ‘chaste’.”
The caste system is a traditional social stratification, which has its roots in the Hindu tradition although, according to a 2014 article in the Equal Opportunities Review, caste differentiations are connected with all of the major religions in South Asia, including Christianity and Buddhism. They encompass various classes which are connected with traditional occupations and are ranked on a perceived scale of ritual purity.
The definition of race in section 9(1) of the 2010 Act includes colour, nationality, ethnic or national origin. Despite fierce debate on the subject in the House of Lords, the Government chose not to extend protection to caste discrimination when the Equality Act 2010 was originally passed but included a power for the Government to provide that caste could be added to the definition of ‘race’ (at section 9(1) of the Act) at a later stage.
The Government argued that more research was needed prior to legislating on the issue to determine the nature, extent and severity of caste discrimination in Britain. A significant consideration on the part of the Government was that caste-related issues in respect of existing laws had not by that point been tested in the courts.
What is the extent of caste discrimination and harassment in Britain?
The Government duly commissioned the National Institute of Economic and Social Research to investigate the subject and the NIESR published its report entitled ‘Caste discrimination and harassment in Great Britain” later in 2010. The report found that caste awareness was concentrated amongst people with roots in the Indian sub-continent (5 per cent of the population), that is it not religion-specific and affects members of any or no religion. The report identified evidence which highlighted caste discrimination and harassment of the type covered by the Equality Act in education (pupil on pupil bullying), the provision of services (provision of personal care and access to day centres) and in the workplace (bullying and less favourable treatment associated with recruitment, promotion and task allocation).
The discrimination and harassment was found to have been carried out by higher castes against lower castes, and the report estimated that the size of the low-caste population in Britain varied between 50,000 and 200,000 or more. The consequences of caste discrimination were found to include reduced earnings, social isolation, depression and loss of self-esteem and confidence.
Furthermore, the report stated that while individuals may reject the idea that they belong to a particular caste, they may still be regarded by others as belonging to a caste. Therefore, the debate about the definition of caste and the traditional distinctions imposed by the caste system continue to court controversy.
Although an educative approach to reduce caste discrimination and harassment was suggested as an option going forward, the study concluded that caste-specific legislative provisions would be more effective to combat the issue.
Tirkey –v- Chandok ET/3400174/2013– “race” can encompass “caste”
An employment tribunal has held that the definition of ‘race’ in the Equality Act 2010 is wide enough to encompass ‘caste’.
Ms Tirkey (T) was part of a servant caste and employed by a married couple as a live-in domestic servant, originally in India and later in the UK. The servant caste is recognised as the lowest point of almost every social-economic indicator. T was required to work seven days a week from 6am to 12.30am. She was not allowed to sit on the same furniture as the family and was instructed to use separate crockery and cutlery and she was required to sleep on the floor on a piece of foam. During her four and a half years of employment, T was paid around £3,140 in total and took one day off as holiday.
T presented claims for discrimination on grounds of race and religion and belief against her employer, Mr and Mrs Chandok (C).
T sought to add a claim for caste discrimination, arguing that the reason for the less favourable treatment afforded to her was that C believed that T had a lower status and this view was tainted by caste considerations. C, on the other hand, applied to strike out the caste discrimination claim on the basis that no legislation specifically outlawed this and so the claim had no reasonable prospect of success.
The tribunal concluded that there was a sufficiently strong argument that protection against caste discrimination was covered by existing legislation. It noted that provisions on racial discrimination in the Equality Act 2010 were intended to give effect to the EC Race Directive 2000/43/EC (which implemented the International Convention for the Elimination of all forms of Race Discrimination 1965).
The tribunal found extensive support for protection from caste discrimination in international law and European law and particularly the domestic case of Mandla –v- Dowell-Lee  ICR 385.
The House of Lords in Mandla held that direct discrimination on the grounds of ethnic origin includes discrimination on the grounds of a person’s descent and lineage.
In the Mandla case, a child was excluded from attending a Jewish school on the basis that his mother was not Jewish. Therefore, in Tirkey –v- Chandok, the definition of race in section 9(1) of the 2010 Act was interpreted widely so as to include caste as part of the definition. Even though the Government had decided to change the law to make it clear that caste is an aspect of the protected characteristic of “race” but had not yet done so, this did not matter.
On 29 July 2013, the Government announced that it would publicly consult in 2014 about the best way to prohibit caste discrimination. The outcome of the consultation is due to be published this Autumn, with a 12 week consultation on the draft order planned until February 2015 and the final draft order set to be introduced to Parliament during summer 2015.
There is a considerable body of anti and pro-caste legislation opinion which expresses opposing views on trends in caste awareness. Anti-caste legislation organisations consider caste is stronger amongst older generations and will decline as those generations die out, while pro-caste legislation campaigners believe that that traditional caste ideas will resurge owing to migration flows and a reported growth in ‘caste-pride’ amongst younger generations.
The implications for business of this change will be dependant on a number of factors, including the demographics of the workforce, but in the first instance it will be necessary for small business owners to plan an audit or review of Equal Opportunities, Harassment, Bullying and Dignity at Work policies and recruitment procedures. Employers should consider refresher training to promote equal treatment and awareness.
Although the decision in Tirkey –v- Chandok is not binding on other tribunals, the publicity it has attracted, together with the advent of the change in the law from 2015, may produce a raft of claims by claimants who regard that their treatment at work has been influenced by their ‘caste’.
As with other types of discrimination, there is no cap on the amount of compensation that can be awarded by an Employment Tribunal to a Claimant who wins his or her claim – this principle applies to all employers, regardless of their size or turnover.
Small business owners in all industries should therefore be vigilant to this new yet little-publicised type of discrimination claim and be aware of the effects that such treatment could have on the well-being and productivity of the workforce.
Jennifer Cooper is a solicitor in the Employment team at Barlow Robbins LLP in Woking