The Equality Act 2010 does not include specific protection for individuals who are victims of discrimination as a result or associated with their caste. However, it does include provisions for protection from caste discrimination to be added at some time in the future.
Nonetheless a claim based on such discrimination has been brought successfully by Pamela Tirkey against her employers, Mr and Mrs Chandhok, and she has now received compensation amounting to nearly £184,000.
Ms Tirkey was recruited as a cleaner and nanny by Mr and Mrs Chandhok, initially in India and subsequently in the United Kingdom. There is no doubt that her terms of employment were appalling. For example she was paid just 11p an hour. She said that she was treated in a demeaning way and she was more in a state of servility than service. She was required to work 18 hours a day, seven days a week. She was required to sleep on a mattress on the floor, prevented from bringing her bible to the UK, not allowed to contact her family and given a bank account which was controlled by her employers. Her employment ended in November 2012. She brought an employment tribunal claim alleging direct or indirect race discrimination and compensation for discrimination based on religion or belief. Incidentally, the Legal Aid Agency refused funding for representation for 17 months on the basis that the case was “not of sufficient importance or seriousness” and it was “just a claim for money”.
Although the ET1 was very lengthy it made no direct reference to caste discrimination. In May 2013, with the permission of Employment Judge Ward, she amended her claim. Paragraph 53 of the claim initially stated “The Claimant contends that the reason she was treated as complained of was that she is of Indian nationality and/or national origin”. It was amended by adding the word “ethnic” after Indian nationality. This was followed by a new paragraph:
For the avoidance of doubt the Claimant avers that her ethnic and/or national origins includes (sic) but is not limited to her status in the caste system as perceived by the Respondents. The International Convention on the Elimination of All Forms Racial Discrimination (“ICERD”) prohibits discrimination on the grounds of “descent”: its principles are adopted by the Race Framework Directives and, it follows, the Equality Act. Thus s13 EA 2010 must be taken to prohibit caste discrimination. The Claimant avers that the and/or a reason why she was recruited and treated in the manner alleged was that the Respondents concluded that she was of a lower status to them: this view was tainted by caste considerations.
Ms Tirkey’s family are Adivasi people who are frequently referred to as being of “low caste” although her caste was not expressly pleaded. Although they had not objected to the amendment at the time, Mr and Mrs Chandhok subsequently applied for it to be struck out. Their application was rejected by Employment Judge Sigsworth in January 2014 who stated that “the claim of caste discrimination as set out in the amended statement of claim is not struck out and the claim will proceed to a merits hearing”. That was not strictly correct since there was not an express pleading that there had been caste discrimination; nonetheless its meaning was clear. Mr and Mrs Chandhok appealed to the Employment Appeal Tribunal.
Mr Justice Langstaff was critical of Judge Sigsworth for reading into the ET1 a caste discrimination claim that was not actually there as such. Nonetheless he went on to consider the grounds of appeal. First, it was contended that to allow the claim would amount to “ousting the will of Parliament”. Section 9(5) of the Equality Act (as amended by the Enterprise and Regulatory Reform Act 2013) states that “A Minister of the Crown…(a) must by order amend this section so as to provide for caste to be an aspect of race; (b) may by order 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”. It was initially proposed that there would be a full consultation in 2014 with draft legislation being introduced to Parliament in summer 2015 but this has not happened. Accordingly it was not for a tribunal to anticipate legislation not yet introduced.
Second, judgments which applied a purposive interpretation of the meaning of “ethnic origin” (so as to give effect to what was intended), as in the cases of Jews and Sikhs, were not comparable because Parliament had specifically singled out caste for statutory provision.
Third, the EU Race Directive was not applicable because the case was between individuals and did not involve the State or emanations of the State.
Fourth, the judge as in error to hold that caste could come within the scope of discrimination of the grounds of religion and belief.
Mr Justice Langstaff identified two key questions. First, does the law of discrimination provide a remedy for discrimination in the factual circumstances which the claimant was offering in her claim form to establish in evidence? Second, does the fact that the Equality Act as originally enacted envisaged (but did not implement) the addition of protection from caste discrimination mean that any claim asserting less favourable treatment for “caste reasons” must be precluded until the legislation is amended?
Having considered the relevant authorities Mr Justice Langstaff held that a wide and flexible scope should be given to the meaning of “ethnic origins”. In that regard there is a close link between descent and caste. As for the effect of the legislation too much weight was placed on the effect of section 9(5).
In my view there is a distinction to be drawn between the intention of Parliament when it enacts legislation, and its subsequently displayed understanding of the effect of the legislation it has enacted. The two are not the same, however closely it may be hoped they will align. Once statute is enacted it has the meaning a court will assign to it. The meaning of a statute, and the intention of Parliament in and when enacting it, may be found from a number of sources: the words themselves, the apparent thrust of the legislation, material identifying the vice which the enactment of the statute was sought to remedy, relevant international obligations which it may be assumed Parliament intended to satisfy rather than flout. But Parliament’s own view – even by inference from that which it subsequently expresses legislatively – as to that which the legislation meant cannot be conclusive as to its meaning. That is a matter for the courts applying the tools at their disposal which I have summarised above, as to the application of which there are many examples…
He was also unwilling to accept that the answer to the question whether “caste” as a distinct concept exists as a separate strand in the definition of race is determinative. He concluded that if the evidence shows that Mr and Mrs Chandhok treated Ms Turkey as they did “for reasons which more than minimally included their view of her status or origins, and if that status, or that view is bound up with her ethnic origins was understood in domestic case law” then her claim for discrimination would succeed.
That judgment was handed down in December 2014 and now the employment tribunal hearing has taken place and Ms Tirkey won, being awarded just under £184,000.