Imagine you work in a company with two employees, both Indian, and an employer who is also Indian. You come from the Dalit caste in the caste system, meanwhile your employer and a fellow employee performing the same role as both share a higher caste. You notice that despite having exactly the same job as your co-worker your manager is imposing all the degrading tasks to you, you believe that is because of your lower caste.
Back in 2010 when the Equality Act 2010 was enacted a provision was passed that made clear that caste was to be part of the protected characteristic of Race:
5)A Minister of the Crown
(a) Must amend this section so as to provide for caste to be an aspect of race;
(b)may amend this Act so as to provide for an exception to a provision of this Act to apply, or not to apply, to caste or to apply, or not to apply, to caste in specified circumstances.
However, the Conservative led government failed to do this, a decision that was, rightly, a point of criticism alleging “appalling delays” in applying the provision. The result is that for this Indian Dalit who believes they have been the subject of caste discrimination is uncertain she has a legal redress against her employer on race discrimination grounds.
Thankfully, in despite the appalling prevarication of this government there is now some clarity for the many South Asian employees from lower castes, who reports suggest are subject to discrimination but are likely to be afraid of speaking out. A similar situation to that set out above was faced by the claimant in Chandhok & Anor v Tirkey [2014] UKEAT 0190_14_1912.
In Chandhok the claimant believed the regressive terms and conditions of employment employed were a direct result of her lower caste and made a claim that her employer had directly discriminated her on the grounds of her race. The Respondent sought to strike out the claim on the basis that caste was not constitutive of the protected characteristic of race and that, therefore, the claimant had no legal claim. The first tier tribunal found that the claimant’s caste, although not expressly covered by the characteristics set out in section 9(1) of the Equality Act 2010 could be protected. The employer appealed.
Although the EAT did not find that caste discrimination is always covered by the Race provision of the Equality Act it did find that it may be, on a case by case basis, come within section 9(1)(c) of the 2010 Act, namely “ethnic origins”. The relevant comments are in paragraphs 51 and 52 of the judgement:
51. It follows that with the omission of the bold assertion from paragraph 54 that “caste discrimination” is prohibited by the Equality Act – as to which the answer must be there is as yet no formal definition of “caste” for those purposes – there may be factual circumstances in which the application of the label “caste” is appropriate, many of which are capable – depending on their facts – of falling within the scope of section 9(1), particularly coming within “ethnic origins”, as portraying a group with characteristics determined in part by descent, and of a sufficient quality to be described as “ethnic”. As the Judge put it, caste “is an integral part of the picture” in the present case.
52. I am particularly happy to have reached this conclusion upon the effect of the wording in the current domestic statute, given its interpretation as expressed in Mandla and in JFS, albeit by reference to the earlier statute. I do not accept that the effect of section 9(5) of the Equality Act is to limit the scope to which the statutory definition of race extends. The decisions in those two leading cases remain fully applicable. Such an interpretation is consistent with the UK’s international obligations, including that derived from ICERD. On this basis, section 9(5) contains a power to supplement or clarify section 9(1), not to restrict it. The ERRA leaves open the possibility that there may yet be no formal introduction of “caste” as a separate, and separately defined, species of the genus which is “race”. The interpretation which I favour is compatible with EU Law. These are additional reasons for thinking the conclusion to which I had come to be correct.
The working conditions in which members of a lower caste work will often be precarious and low paid. Without a right to seek legal remedy on discrimination grounds such employees are really in a precarious place – and a claim of constructive dismissal would not be open to many of them. In that sense the EAT’s judgement in Chandhok is certainly welcome in that there is now at least some certainty that there is a discrimination claim open to them, if the facts (and ethnic descent) warrant it.
But it is still too vulnerable a position. While the Enterprise and Regulatory Reform Act 2013 made clear that the Government understood that caste was necessarily included in the protected characteristic of race it has failed to make changes to the law to give effect to that view, preferring instead to kick the issue into the long grass of post-general election legislative intent. And the response of the Labour, Conservative and Liberal Democrats to this continuing imprecision is, as the responses to the Dalit Solidarity Network correspondence show, still not good enough.
