EAT gives Judgment in Caste Discrimination Case
The case concerned allegations by Mr Tirkey that her employers, Mr and Mrs Chandok, had subjected her to discrimination and demeaning employment conditions based upon race and religious discrimination. The appeal concerned an additional element, added to the claim by amendment, which sought to rely upon Ms Tirkey’s low status in the caste system as part of her ethnic or national origins. Ms Tirkey’s lawyers claimed that the definition of ‘race’ in s.9 Equality Act 2010 must be construed to include caste, in light of the UK’s international obligations under the International Convention on the Elimination of All Forms of Racial Discrimination (‘ICERD’) and the European Convention on Human Rights. Employment Judge Sigsworth sitting at Huntingdon ET refused to strike out the caste claim and the Respondents appealed. The Commissioner for Equality and Human Rights intervened in the appeal.
Mr Justice Langstaff, President of the EAT, reserved the matter to himself and heard argument for a day, with reference to seven treaties, thirty key authorities, eleven academic and other publications and several extracts from Hansard.
Giving judgment on 19 December 2014, the President began by finding that the offending paragraph did not, in his view, plead caste discrimination as a separate claim. He ordered that part of it be excised as unnecessary, but it could not be struck out and he therefore dismissed the appeal.
However, he went on to consider the circumstances in which ‘caste’ reasons could trigger a claim for race discrimination. Having dealt with the leading authorities of Mandla v Lee and the Jewish Free School case he found that the term ‘ethnic origins’ in s.9 has a ‘wide and flexible scope’ and must include descent, which is closely linked to caste.
He accepted that there is considerable uncertainty as to the precise definition and boundaries of ‘caste’, and that some caste considerations involve no element of ‘descent’, which was the subject of JFS and the term used in ICERD.
Further, s.9(5), which permits a minister of the crown to amend the Act to provide for caste discrimination at some future point, did not have the effect of excluding caste from the existing definition. However, it is not yet true that ‘caste discrimination’ per se is prohibited by the Equality Act. The distinction to be drawn is between a claim which asserts caste as part of a protected characteristic, rather than merely evidence of it:
“If … the Respondents treated the Claimant as they did for reasons which … included their view of her status or origins, and if that status, or that view is bound up with her ethnic origins as understood in domestic case law, the Claimant will succeed in a claim for discrimination. “
Comment: Those who were expecting a radical statement of new law will be disappointed. There is no free-standing ‘caste discrimination’ under the 2010 Act; instead, claimants must show that their ethnic or national origins as understood after Mandla and JFS were the reason for their treatment. However, many facts relevant to caste will be relevant to ethnic origins; we can expect to see this developed further as the caselaw expands.
As a practice note, the President also criticised the manner in which the case below was presented, in that on a strike-out application, the Judge should have regard only to what is in the pleadings (ET1), rather than extraneous material in witness statements or counsel’s submissions. This led the judge below into error; the ET1 is the only document which sets out the Claimant’s case.