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‘Caste’ discrimination claim can be pursued – ET decision

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On Friday, 19 December, the Employment Appeal Tribunal (EAT) upheld a decision from the Employment Tribunal that 'Caste' can fall within the wide definition of race under the Equality Act 2010 has been dismissed.

Ms Tirkey claimed she had been discriminated against by her employers because she was part of a the Adivasi people or “servant caste” which was considered to be of a lower status to that of her employers.  The tribunal ruled that caste was already protected under the general concept of race as the definition contained in the Equality Act 2010 was not exhaustive and included: “colour, nationality, ethnic or national origin”.

Her employers sought to challenge the original decision on the basis that if Parliament had intended for 'caste' to be protected characteristic it would have been expressly included.  Not only that, there is explicit wording within the Act under which regulations could be introduced making caste a protected characteristic.  The Government is currently working through a programme to introduce this specific legislation, but as yet none is forthcoming.  In light of this decision, it may not be necessary.

The EAT concluded that the power to amend the concept of race to encompass caste does not mean cast couldn't already be covered. But anyone hoping for a definitive answer on whether caste is covered by the Equality Act or not will be disappointed.  The EAT has taken a cautious approach saying that caste is not covered as an autonomous concept, but that because the concept of race includes “ethnic origins” it is broad enough to encompass characteristics determined by descent, which could include caste. 

Nicola Ihnatowicz, Employment partner at law firm Trowers & Hamlins, commented: “Although the Government has announced its intention to make caste a protected characteristic under the Equality Act 2010, we're unlikely to see new regulations before the general election. This case will allow some claimants to pursue claims for caste discrimination without the benefit of the new regulations.''

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