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Is caste discrimination barred under the Equality Act?

Is caste discrimination barred under the Equality Act?

The Employment Appeal Tribunal has reserved its decision in the case of Chandhok v Tirkey concerning whether caste-based discrimination is prohibited under the Equality Act 2010.

Christopher Milsom, who appeared at first instance, led Tamar Burton in the first case heard by the EAT concerning caste-based discrimination. The Equality and Human Rights Commission was granted permission to intervene.

 

The Claimant’s former employers appealed the decision, that she could amend her claims of race and religious discrimination, to include a claim for caste discrimination. She contended, and the judge agreed, that her ethnic origins under s 9 EA 2010 include her status, or perceived status, in the caste system.

The Claimant relied on the early decision of Mandla v Lee [1983] 1 AC and the decision in R (E) v Governing Body of JFS and anor [2009] UKSC 15; [2010] AC 728 to argue that descent-based discrimination is prohibited as part of race or ethnic origins under s. 9 EA 2010. It was the Claimant’s case that the position is further clarified by reference to the International Convention on the Elimination of All Forms of Racial Discrimination, which explicitly prohibits descent-based discrimination.

During the appeal much of the argument centred on the correct statutory interpretation of s. 9(5) of EA 2010, which at the material time stated:

 

A Minister of the Crown may by order—

(a) amend this section so as to provide for caste to be an aspect of race;

(b) 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 the Claimant and the Commission’s view that this enabling clause did not carve out caste-based discrimination from the Equality Act 2010.

The EAT’s judgment is awaited.

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