Under S.9 (5)(a) of the Equality Act 2010 (EA 2010), the Government must make an Order to outlaw discrimination on grounds of caste and a draft Order is expected later this year. But can the EA 2010 be read as already providing protection against caste discrimination? This was the issue that an employment judge (EJ) had to decide in Tirkey v Chandok. Tirkey (T) is of the Adivasi people, regarded as a servant caste and a lower caste to that of her employer. She alleged that she was subjected to less favourable treatment because of her lower status which was tainted by caste considerations. As a preliminary point, an EJ was asked to strike out the caste discrimination claim as it had no reasonable prospect of success because the tribunal had no jurisdiction, as caste does not currently come within the protected characteristic of race in S.9 of the Equality Act 2010.

The EJ refused to strike out the caste discrimination claim and decided that it should proceed to a full hearing for four reasons: (i) Adivasi status is an integral part of T’s race and religious discrimination claim;  (ii) ethnic origin within the protected characteristic of race in the EA 2010 is a wide concept and arguably already  includes caste particularly as case law has held that discrimination by descent is unlawful; (iii) to be compatible with the Human Rights Act (Article 14 in conjunction with Articles 4,8 and 9 in this case), the EA 2010 should be read as protecting against caste discrimination;  and, (iv)  if caste is based on ethnic origin then arguably the EA 2010 does not fully implement the EU Race Directive, designed to give effect to the International Convention on the Elimination of All Forms of Racial Discrimination, where discrimination is defined in Article 1(1) as including discrimination on the basis of descent.

As this is a tribunal decision, it is not binding. It will be interesting to see the EAT’s view if there is an appeal.

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