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Public Bodies Beware – Caste Discrimination

Mirza Ahmad

A recent EAT ruling in a case where an employee sought to claim in part for caste discrimination has important implications for public bodies, writes Mirza Ahmad.

Before Christmas the President of the Employment Appeal Tribunal, Mr Justice Langstaff, handed down an important judgment – Chandhok & Anor v Tirkey (Race Discrimination) [2014] UKEAT 0190_14_1912 – which helps to clarify certain aspects of the Equality Act 2010 relating to caste discrimination.

It also sends out a massive ‘direct effect’ warning to the State and the various emanations of the State, such as central government departments, local authorities, NHS Trusts, Schools and other similar public bodies.

In summary:

  1. The case involved private individuals and a domestic worker who claimed she had been treated badly and in a demeaning manner by the employer, in part (following an amendment of the ET1), because of her low caste status.
  2. The employer sought to strike out the amendment on the basis that the Equality Act 2010 did not recognise caste discrimination, as a protected characteristic under ‘race’, and that this was obvious from the language of the 2010 Act and reference, specifically, in section 9(5) (along with an amendment to it), which was of the effect that the Government intended to review caste discrimination in the future.
  3. It was held that, whilst the parties had clearly presented a lot of material – including an intervener from the Equality & Human Rights Commission – the EAT’s role, jurisdictionally, was only one of being asked to determine a narrow point – whether or not the judge was right, at the first instance, to refuse the strike out of the amendment to the ET1 – and it was not being asked to finally adjudicate on whether or not caste discrimination was or was not covered by the Equality Act 2010 or in this case.
  4. In the final analysis, the EAT held that the judge was right, in terms of the tests applicable at the strike out stage, to reject the strike out application of the employer as discrimination cases are, on the whole, fact sensitive and difficult to strike out without full consideration of the evidence at trial and, more importantly, it was rightly arguable that ‘caste’: (i) should be a matter to be determined at the trial after hearing all the factual evidence and the evidence being tested under cross – examination; and (ii) caste could, based on the available evidence (and other evidence, no doubt, to be adduced at trial), be capable of forming part of the ‘ethnic origins’ in the definition of ‘race’ under section 9(1)(c) of the Equality Act 2010 as it had ‘a wide and flexible ambit’, which could include ‘decent’.
  5. The EAT noted, quite rightly, that the International Convention on the Elimination of All Forms of Racial Discrimination and its principles had been adopted by the EU Race Framework Directive and that both instruments were much wider in their application and effect then the Equality Act 2010; in that, they did cover, explicitly, caste discrimination, unlike the 2010 Act (save in so far as stated in the last paragraph, ‘indirectly’ under ‘ethnic origins’ of the race definition).
  6. Accordingly, as far as private individuals and other non-public entities were concerned in the UK, they would only be able to have the benefit, at this moment, of the Equality Act 2010 and not the International Convention or the full application of the EU Race Directive.
  7. The EAT did, however, make the point, in passing, that because of how EU legal principles work in practice, the EU Directive did have ‘direct effect’ in so far as the State and emanations of the State were concerned. Accordingly, employees of such public bodies were able to rely upon the EU Directive provisions in the UK, even though the current position under the Equality Act 2010 and its future review of caste discrimination by the UK Government makes it, currently for private individuals, of only ‘indirect’ effect (as indicated above via ‘ethnic origins’). In conclusion, public body employers are effectively placed ‘on notice’ that they should be careful to ensure, so far as is possible, that there is no caste discrimination of their employees, contractors or customers. In time, it is hoped that UK domestic law on caste discrimination will be brought more into line with EU law for all.

Original article here.

 

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