Race discrimination and caste
In Chandhok v Tirkey, Ms Tirkey, who was employed as a domestic worker, alleged that she was treated badly and in a demeaning manner by her employers, Mr and Mrs Chandhok (the Chandhoks) and that the employment relationship was more a state of servility than service.
Amongst other things, Ms Tirkey brought claims for direct and indirect race discrimination and alleged that her treatment was in part because of her low status which was infected with considerations of caste.
The Chandhoks subsequently applied for strike out of the race discrimination claim on the grounds that caste does not fall within the definition of race in the Equality Act and indeed that parliament had deliberately chosen to omit caste from that definition. Section 9(5) of the Act specifically provides a power to amend the definition of race "so as to provide for caste to be an aspect of race". To date this power has not been exercised. The Chanhoks therefore argued that Parliament had expressed its recognition that the definition of race does not yet include caste.
The EAT confirmed that 'ethnic origins' has a wide and flexible scope and covers questions of descent. Whilst there is no sociological or legal definition of caste, the EAT held that there would be some situations which would fall both within an acceptable definition of caste and within the scope of 'ethnic origins'.
Therefore, where a person is treated detrimentally because of their status and where that status is bound up with that persons ethnic origin, that person may succeed in a claim for race discrimination. Whilst it may not always be the case, 'caste considerations' may therefore come within the heading 'ethnic or national origins'.
In relation to Parliament's deliberate omission of caste from the definition of race, the EAT drew a distinction between the intention of Parliament when enacting legislation and its subsequently displayed understanding of that legislation. Once a statute is enacted, it has the meaning that a court will assign to it and Parliament's view of what that meaning should be is not conclusive.
Obviously it is advisable that employers should treat staff equally and that any decisions in respect of employees, or differences in treatment, should be based on objective considerations. Whilst 'caste discrimination' is not (yet) a claim in its own right, the relationship between caste and 'ethnic origins' and race discrimination is sufficiently close to make any unfavourable treatment on the grounds of caste extremely risky.
In the meantime, the Government will undertake a full public consultation on the exercise of its power to make regulations outlawing caste discrimination as a form of race discrimination, with a view to ensuring that any such legislation is appropriate and fit for purpose. The Government has provisionally indicated that regulations will be introduced to Parliament during Summer 2015, although the consultation has not yet been issued, which is likely to cause delay.
For more information, please contact Nick Murrell on 0117 314 5627.
- See more at: http://www.vwv.co.uk/what-s-happening/publication...
Authoritative analysis of the rules governing termination of employment provides coverage of the...