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Caste discrimination where linked to ethnicity is racial discrimination

Caste is not a “protected characteristic” under S.9 of the Equality Act 2010 (EA 2010), and therefore not expressly prohibited as a ground for discrimination or harassment. The Government is required to provide for caste to be an aspect of the protected characteristic of ‘race’ under the Enterprise and Regulatory Reform Act 2013 (ERRA 2013), but the amendment has yet to take place. It has been argued, however, that because the definition of race in S.9(1) includes “colour; nationality; ethnic or national origin”, then that is broad enough for caste to already be included.

Much of the argument has centered on two previous cases involving the definition of “ethnic origin” which suggests that the term should be interpreted widely and in particular that ‘ethnic’ means more than simply racial or biological and that it is not necessary for each particular caste to establish that it has its own ethnic group (Mandla v Dowell Lee ; R (E) v The Governing Body of JFS and the Admissions Appeal Panel of JFS and others).

In Mr A and Mrs P Chandhok v Tirkey, Ms Tirkey’s inherited caste (by descent) is the Adivasi, known as a servant caste. On the basis of allegedly bad and demeaning treatment by her employers, because they viewed her as being of lower status than they were, Tirkey included caste discrimination as part of her race discrimination complaint. The employment tribunal rejected the employers’ application to strike out this part of her claim, their argument being that “caste” was not protected by the EA 2010 and so there was no jurisdiction to hear the complaint.

The EAT rejected the appeal. The principles expressed in Mandla and JFS give a wide and flexible scope to the meaning of 'ethnic origins' and given the stress to be placed on the word 'origins', descent is clearly to be included within it, at least where it is linked to concepts of ethnicity. Therefore, there may be factual circumstances involving caste capable of falling within the current scope of S.9(1) EA 2010. In addition, the fact that the Government had yet to amend the law to provide that caste is an aspect of the protected characteristic of race was not determinative that caste could not fall within the existing definition. The tribunal was right to refuse to strike out the claim as a full hearing was required to determine whether Tirkey could establish that her claim fell within the protected characteristic of race.

Content Note

The aim is to provide summary information and comment on the subject areas covered. In particular, where employment tribunal and appellate court cases are reported, the information does not set out full details of all the facts, the legal arguments presented by the parties and the judgments made in every aspect of the case. Click on the links provided to access full details. If no link is provided contact us for further information. Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, SM&B cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.

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