[This note has been prepared by HLA to inform and update national Hindu organisations as to the current position on how the word “caste” is being defined and implemented in current relevant cases. It is not to be taken as any legal advice, but merely as an analysis of current legal affairs. We urge the community not to react to this case.]
Employment Judge Supports HLA’s Argument that Caste Discrimination is Already Covered by Domestic Law: HLA Urges Public Consultations to Consider Landmark Judgment in Caste Case.
On Friday 24 January 2014, Employment Judge Sigsworth sitting at the Huntingdon Employment Tribunal in the case of Tirkey v Mr and Mrs Chandok delivered a judgment at a preliminary hearing to accept the Claimant’s claim for caste discrimination despite no express caste discrimination legislation being in force. Employment Judge Sigsworth held that ‘caste’ is already protected under the general concept of ‘race’, which includes an ethnic group. This judgment is of paramount significance in the determination of caste discrimination law in England and Wales. The essence of the judgment effectively corroborates the HLA’s briefing note to AHO of May 2013 that the government simply did not need to expressly legislate on the protected characteristic of ‘caste’ as the existing law more than adequately deals with a situation of caste discrimination.
Employment Judge Sigsworth has made the following clear in his judgment, in that:
1. There is no comprehensive and exhaustive definition of race in Section 9(1) of the Equality Act. It “includes” ethnic origin. This in itself is a wide concept, as is clear from the authorities. It can therefore be argued that “caste” is already part of the protected characteristic of race, purely by reference to Section 9(1);
2. The domestic case law â€“ in particular the cases of Mandla and the Jewish Free School case â€“ provide authority for the proposition that discrimination by descent is unlawful as it is direct race discrimination. The Claimant’s case is that she is lower caste by birth and therefore descent â€“ a position in society that she cannot change;
3. In consideration of the Human Rights Act 1998, and the Articles of the Human Rights Convention set out in Schedule 1, the primary legislation (in this case Section 9(1) of the Equality Act) must be read and given in a way that is compatible with Convention rights â€“ see Section 3(1) of the Act. The Claimant in this case cites potential breaches of Articles 4(1), 8(1) and 9(1). Article 14 prohibits discrimination in relation to the enjoyment of the rights and freedoms set out in those Articles, and a broad definition of discrimination follows: ‘The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any grounds such as sex, race, colour, language, religion, political or other opinion national or social origin, association with a national minority, property, birth, or other status”. This definition is certainly wide enough to include the caste discrimination complained of by the Claimant. It is concluded that Section 9(1) can be and should be construed in such a way as to provide for caste discrimination in the context of this case to be part of the protected characteristic of race discrimination; and
4. If caste is based on ethnic origin â€“ and discrimination on grounds of ethnic origin is not proscribed by the Equality Act â€“ then arguably the Equality Act does not fully implement the provisions of the EU Race Directive. The Race Directive is itself intended to give effect to the ICERD (to which the UK is a signatory), and racial discrimination defined therein includes discrimination on the basis of, inter alia, descent.
Further, Employment Judge Sigsworth stated that the fact that the government has decided to legislate to make it clear that caste is a protected characteristic, or an aspect of the protected characteristic of race, was not determinative of the issue in the case. Crucially, the Employment Judge was able to provide a judgment that the Claimant’s claim of caste discrimination was to be accepted and for it proceed to a full merits hearing despite no express caste discrimination legislation being in force.
The landmark judgment given by Employment Judge Sigsworth marks a victory for both the anti-caste lobbying groups that were against expressly legislating on the implementation of the word caste into legislation and the pro-caste lobbying groups that were for such legislation. This is because the judgment supports any potential victim of caste discrimination by giving the victim a legal recourse. It also marks a victory for the community as it shows the government that there is no need to expressly legislate on “caste” as the existing law has always covered this situation. The Hindu community have historically campaigned against caste discrimination and have worked tirelessly in removing the ignorance of any discriminatory practices from within the community. The Hindu community finds caste discrimination intolerable and should welcome Judge Sigsworth’s judgment.
Further, as the HLA stated in their May 2013 legal briefing note to AHO, it was made clear in the unfinished case of Begraj v Heer Manak that the Claimant, Begraj, claiming caste discrimination was allowed to plead caste discrimination as his team of lawyers rightfully thought that present legislation could deal with caste. At no point did Begraj have to apply to amend his pleadings, nor did Heer Manak make an application to strike out any aspect of the claim by stating that ‘caste’ was not a word in present legislation. On the contrary, the case continued to be heard for 36 days and the Employment Judge did not even take up the use of the word caste as a preliminary point in the entire proceedings.
Accordingly, given the elasticity of the word race or ethnicity, there is adequate scope in present legislation to deal with this, without profiling or educating anyone on caste whatsoever. The judgment in Tirkey v Mr and Mrs Chandok proves this.
The judgment in Tirkey v Mr and Mrs Chandok now needs to be used as the foundation for a public consultation on the caste issue. An Employment Judge has made the current position in law very clear and the judgment must be used when considering how to best set the framework for the proposed caste discrimination legislation.
Given a clear and objective judgment in Tirkey v Mr and Mrs Chandok, it would no doubt be argued by the HLA that any legislation that proposes to expressly set a framework for caste discrimination must take into consideration that caste is already protected under the wide concept of race as set out in the Equality Act 2010. In light of the recent judgment, the HLA proposes to closely inspect and review the public consultation process and any prospective final consultation paper.
The judgment can be found at: https://dl.dropboxusercontent.com/u/18097599/3400174.pdf
Kishan Bhatt â€“ HLA Public Relations Officer
M: 07931 238 301