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Chris Milsom establishes why caste discrimination is covered by race discrimination law
In the first detailed finding of its kind in the UK, the employment tribunal has found that discrimination on the grounds of caste can be a form of race discrimination. In Tirkey v Chandock 3400174/2013 Employment Judge Sigsworth, sitting at Huntingdon, the Claimant argued that she had been the subject of discrimination because she is of the Adivasi people, a servant caste. The Respondent failed in its attempt to have the claim based on caste discrimination struck out.
The judge referred to the explanatory notes to the Equality Act 2010, relating to s 9(5). This subsection allows the government to introduce regulations to cover caste explicitly as an aspect of the protected characteristic of race. The notes explain that caste denotes a hereditary, endogamous (marrying within the group) community associated with a traditional occupation and ranked accordingly on a perceived scale of ritual purity.
The Claimant, mirroring an argument in Discrimination in Employment: a claims handbook p27-28 (LAG 2013, edited by Cloisters barristers) relied on the Race Directive (2000/43/EC) and pointed out that it is intended to give effect to the International Convention for the Elimination of All Forms of Racial Discrimination 1965. That Convention includes discrimination as a result of descent as part of racial discrimination. The Claimant also relied on the Charter of Fundamental Rights of the EU, and the European Convention on Human Rights and Fundamental Freedoms.
The Respondents argued that there was no definition of caste and that it was an abuse of process to bring the claim because the regulations had not yet been brought into effect. In the earlier case of Begraj v Heer Manak Solicitor and others a tribunal refused to strike out the claimant’s claims, but did not provide full reasons for doing so. Tirkey sets out the reasoning in full.
The implications of this judgment are substantial. First, plainly the characteristic of caste is not confined to the Vedic system of caste, and it is not clear what the outer limits of the characteristic are. Second, Caste discrimination is due to be the subject of regulations which will define its scope in more detail, and there is an obvious difficulty in using “descent” without more as the defining characteristic. Without the explanatory notes’ approach which uses factors and in particular the factor of ritual purity, there would be a very good argument for saying that the British class system was covered by the concept of caste. This is plainly not the intention of the Equality Act 2010, despite the existence of section 2 which covers socio economic background as a particular characteristic. It has not been brought into force, but the concept of race does have limits. The legislation which the government has committed to enact in order to articulate the concept of caste will probably attempt to set those boundaries.
Here is a link to the Tribunal’s Decision.