Chandhok & Anor v Tirkey (Race Discrimination)  UKEAT 0190 14 1912 was an appeal against the refusal of Employment Judge Sigsworth to strike out some parts of a claim by Ms Tirkey. She had claimed that the Chandhoks had treated her badly and in a demeaning manner and initially sought “compensation for direct or indirect race discrimination and harassment including injury to feelings” and “compensation for discrimination on the grounds of religion or belief, including injury to feelings…”. She then claimed (by amendment) that her treatment was in part because of her low status which was “infected with considerations of caste”.
The Chandhoks applied to strike out this amendment on the following grounds:
- that “caste” did not fall within the definition of “race” in s 9(1) Equality Act 2010; and
- that the enactment of s 9(5), both initially and as subsequently amended by the Enterprise and Regulatory Reform Act 2013 (which inserted s 97 (Equality Act 2010: caste as an aspect of race) into the principal Act), demonstrated that Parliament recognised that “caste” was excluded from the definition in s 9(1).
In the EAT Langstaff J, sitting alone, concluded that though “caste” as an autonomous concept did not presently come within s 9(1), many of the facts relevant in considering caste in many of its forms might be capable of doing so, since “ethnic origins” in s 9(1)(c) had a wide and flexible ambit, including characteristics determined by “descent”; and it became common ground during the argument that it was possible that the facts found in hearing Ms Tirkey’s claim might come within the scope of that phrase. He held that
“… since the facts which the Claimant promises to establish if her claim is made out could come within section 9(1) of the Equality Act, a pleading to that effect cannot properly be struck out without hearing and determining the full facts. Employment Judge Sigsworth was right so to determine” .
However, he was careful to make it clear that the issue did not turn on the question of Ms Tirkey’s caste as such:
“She can succeed in her claim if she can bring the facts of her case within the scope of the section as it stands, without needing the Tribunal to assume that section 9 of the Equality Act 2010 should be re-written as if sub-section (1) had added to it, separately, as sub-section 9(1)(d), the word “caste”. If she proves facts which – whether colloquially or accurately – could be described as “caste considerations” which come within the heading “ethnic or national origins” in section 9(1)(c) she will succeed in her claim if the Tribunal concludes that she was less favourably treated because of those facts: if she fails, then no matter how much it might be asserted that she is of a particular caste, and that that was a reason for her treatment, she will fail unless at least part of her treatment falls within section 9(1)(a), (b) or (c)” [53: emphasis added].
He added as a postscript:
“My focus has been on the appeal in this particular case, in its particular circumstances: I have not seen my role as being to resolve academic disputes, and establish more general propositions, of no direct relevance to the case in hand. In the event, all that it has been necessary to say is that on the facts of this particular case, and the wording of the amended ET1 as such … this Claimant may yet establish that the grounds of her treatment fall amongst those proscribed by section 9 of the Equality Act 2010″ [55: emphasis added].
In short, this was an interlocutory proceeding; and we must wait and see what happens at the substantive hearing in the Employment Tribunal. And whichever way it goes, the outcome will be of interest to the Government: in May 2014, Lord Ahmad of Wimbledon said this in relation to the issue of caste and the equality legislation:
“… Another recent development is the judgment in the Employment Tribunal case of Tirkey v Chandhok which concluded that there is already legal protection against caste discrimination through the race provisions of the Equality Act 2010. We need to review recent case law to consider whether and how it may affect the way in which we implement the legislation. We would expect the public consultation document, including our conclusions on these matters, to issue in the Autumn.“ [Lords Hansard 6 May 2014 : c WA332]
But that, of course, was before the EAT judgment. And we are still waiting for the Government’s conclusions.
[With thanks to Prakash Shah for the lead]
See also Michael Ford, ‘Caste Discrimination under UK law: Chandhok v Tirkey’ (OxHRH Blog, 25 May 2015)