Caste is not currently one of the protected characteristics in the Act, and so caste HR is not expressly prohibited. However, the definition of “race” in the Act is non-exhaustive, and includes “colour, nationality, ethnic or national origin”.
There is, therefore, scope for arguing that other attributes, such as caste, are covered.
The caste system is a traditional social stratification emanating from the Hindu tradition. It encompasses “classes” which are associated with a traditional occupation and are ranked accordingly on a perceived scale of ritual purity.
In this case, Ms Tirkey was employed by Mr and Mrs Chandok as a live-in domestic servant. She is part of the Adivasi caste, which is known as a ‘servant class’. She alleged that she was required to work 7 days a week; that she was not allowed to sit on the same furniture as the family; and that was made to use separate crockery and cutlery as higher caste people would not touch plates and cups she had used.
Ms Tirkey brought a number of complaints including unfair dismissal and race HR. She sought to add a complaint of caste HR as part of her race HR complaint and she complained that the reason why she was recruited and treated in the manner alleged was that the Chandoks concluded that she was of a lower status to them, and that this view was tainted by caste considerations.
The Chandoks applied to strike out the complaint of caste HR as caste was not a protected characteristic. However, the tribunal allowed it to proceed. The tribunal found that ‘ethnic origin’ for the purposes of the Equality Act is a wide concept and it could therefore be argued that caste is already part of the definition. The outcome was appealed and the EAT upheld the tribunal decision.
Bolstering this Judgment is the fact that the Equality Act is due to be amended at some point this year to ensure that caste HR is specifically prohibited.