Employers will be well aware that discrimination law protects employees from discrimination and harassment based on a number of “protected characteristics” such as sex, age, religion and race. The Equality Act 2010 sought to bring together all discrimination law into one statute and define all these characteristics. Despite lengthy research and discussion on the issue, the government has chosen not to exercise the power they have under the Act to explicitly include caste in the equalities regime.

Caste has always been a nebulous term for UK law makers, especially because it is often associated with certain cultures from the Indian sub-continent where strict social division based on birth is ingrained. However, issues surrounding caste potentially affect a significant number of people in Britain. Research from the Government Equalities Office suggests that the population of people who belong to “low caste” in Britain could be up to 200,000.

There has been considerable argument on both sides of the debate. Some stakeholders have cautioned the state from intervening in cultural or social issues which are a matter of private practice. On the other hand, the Anti Trafficking and Labour Exploitation Unit have lambasted the government from failing to legislate explicitly in this area, calling the government’s position on caste discrimination “untenable”.

For some years, those who brought cases to Employment Tribunals claiming discrimination on the basis of caste faced difficulty because it was not identified in law as a separate protected characteristic. Instead, claimants had to characterise the discrimination as either religious or racial to fit into the current regime. However, in the case of Chandok and another v Tirkey [2015] IRLR 195, the EAT decided that “caste” as a concept could fall within “ethnic origins” which in turn forms part of the definition of race under the Act.

The claimant in this case was an Indian woman who is a member of the Adivasi caste, referred to as the servant caste. She was employed as a domestic servant working under terrible conditions. Being paid just 11 pence per hour, she was required to work 18 hour days, sleep on the floor and prevented from contacting her family or controlling her own bank account. When she brought a number of claims for unlawful deductions of wages, unfair dismissal, race discrimination, and religious discrimination to an Employment Tribunal, her employers sought to have the claim struck out on the basis that the caste discrimination aspect of her claims was not recognised under UK law.

However, the EAT decided that caste discrimination could come under the definition of race discrimination, and the case was sent back to the Tribunal to see whether she had been discriminated against and whether she was entitled to compensation. In a judgment handed down last month the claimant succeeded, and the Employment Tribunal awarded her £183,773 in compensation for her shortfall in payment of the national minimum wage. On 5 and 6 November 2015, the tribunal will decide how much compensation the claimant is owed for her remaining claims, including caste discrimination.

The nature of caste discrimination means that inclusion of caste in the definition of race discrimination is most likely to have an effect on employers recruiting in domestic servitude, and is unlikely to have a significant impact in the majority of workplaces. Nevertheless, the judgment in this case emphatically recognises the plight of those who suffer caste discrimination. As such, employers need to make sure that they are culturally sensitive to issues of caste and consider incorporating caste discrimination in their harassment and discrimination policies.

Posted on 16/10/2015 in BWB Publications

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