The number of characteristics protected from discrimination have been expanding and all without a new law being passed. First we had the ruling of the ECJ in Karsten Kaltoft v Kommunernes Landsforening who decided that obesity can fall within the ambit of protection from disability discrimination and now we have the decision of the Employment Appeal Tribunal in the case of Chandhok & Anor v Tirkey who have held that employees can, in certain circumstances, be protected from discrimination on the grounds of their caste.
Ms Tirkey was a migrant worker from India employed by Mr and Mrs Chandhok as a nanny. She complained that she was mistreated by her employers and that this was in part due to their belief that she was of a lower status to them by virtue of her Adivasi caste.
The caste system, associated primarily with South Asia and particularly India, divides people into separate groups based on birth, marriage and occupation. Caste is seen as immutable and can have obvious impacts on social mobility, work opportunities and access to education. While not a familiar concept in the UK, the ramifications of the caste system are being felt by UK employers as the UK Indian population and workforce increases.
UK employers are not permitted to discriminate against employees on the grounds of their race, including their ethnic origins. However, the extension of the UK Equality Act to expressly prohibit caste discrimination has been delayed so this is not yet a protected characteristic. Notwithstanding this, the EAT has decided that elements of caste can form part of an individual’s ethnic origin and therefore that caste discrimination can be protected against as a form of race discrimination. This is a helpful clarification whilst we await the extension of the Equality Act (consultation preceding legislative change is expected later this year) to expressly prohibit caste discrimination.
The EAT’s decision will be welcome news for anti-caste discrimination campaigners who have been angered by the Government dragging its heels over the introduction of new measures expressly prohibiting caste discrimination. The Government has blamed the delay on caste being a sensitive and complex issue and the need to ensure the unfamiliar issue is fully understood by UK parties. The EAT did not however seem encumbered by these complexities in reaching its finding that the definition of “race” in the Equality Act 2010 (which includes “ethnic origin”) is wide enough to encompass caste.
As with the approach to obesity, the courts are not concerned with waiting for new legislation to protect vulnerable workers. A common sense interpretation of the purpose of existing laws is often all it takes to protect against unjustifiable discrimination.
Given the ever expanding categories of workers protected from discrimination, what could be next? Within my career, I have seen protection extend to cover age, religion & belief, sexual orientation, gender re-assignment and now obesity and caste. As a multi-cultural society with an increasingly diverse workforce, we need to adapt to the challenges this raises and make sure our laws evolve to keep pace with any new vulnerabilities, such as caste discrimination.