Campaigners were outraged last summer when calls for changes to the law to be made to outlaw caste discrimination were met with a lengthy consultation period. Changes following that consultation are not expected until summer 2015.
However, a recent first instance decision appears to give some hope for a quicker resolution.
Tirkey v Chandock & Others involved a live-in domestic helper (the claimant) employed by the respondent family originally in India and then later in the UK. The claimant was part of the Adivasi caste which is also know as a “servant caste” and often equated with Dalits (previously known as “untouchables”).
The claimant brought a claim against the family including complaints of unfair dismissal and race discrimination, amongst other things but applied to include a complaint of caste discrimination. The family sought to strike out this complaint on the basis that it would not be in the interests of justice to allow the claimant to proceed as there was no legislation outlawing caste discrimination.
The tribunal dismissed the family’s application to strike out. The tribunal found that the interpretation of “ethnic origin” was a wide concept under the Equality Act 2010 and it could be argued that caste was already a part of the definition under section 9(1). It upheld a number of the claimant’s arguments including:-
• That domestic case law supported the proposition that discrimination by descent was unlawful and amounts to direct race discrimination;
• That the definition of discrimination in the European Convention on Human Rights (ECHR) was sufficiently wide to include caste discrimination; and
• That descent-based discrimination was prohibited under the Race Directive and the International Convention of the Elimination of all forms of Racial Discrimination 1965 and that the UK had not opted out of its provisions.
Given the tribunal’s findings, it was not necessary for it to make a decision on whether caste discrimination amounted to religious discrimination.
The tribunal stipulated that the fact the government had not yet made clear whether caste discrimination was a protected characteristic was not determinative. It had, instead, found that the law as it currently stands did allow the claimant to bring a claim for caste discrimination.
The decision in Tirkey appears to conflict with an existing decision where a complaint of caste discrimination was dismissed partly due to the fact that the government had not yet chosen to activate the power under section 9 to expressly include caste as an aspect of race (Naveed v Aslam).
Undoubtedly, the decision in Tirkey will be heralded by campaigners as a huge step forward in their cause. However, it remains to be seen whether other decisions will follow suit given that both decisions are tribunal decisions and therefore not binding. It may transpire that the position will only solidify once the government finally gets round to giving its word once and for all next year.