A recent case in the Employment Appeal Tribunal (EAT), Chandhok and Anor v Tirkey UKEAT/0190/14/KN, has highlighted the issues of modern slavery and caste discrimination in the employment law arena. In India, ‘caste’ is a system of social stratification by which groups of people are defined based on an understanding of their social class and heritage; rights are fixed and inherited at birth. The claimant, Ms Tirkey, had been engaged in domestic service for her employers in India. Under the caste system, some in India would consider the employers to be of a ‘superior caste’ to that of Ms Tirkey, who is of the Adivasi people, and classified as ‘low caste’. When the employers relocated to the UK Ms Tirkey was moved with them.
Following years of enduring extremely difficult working conditions, Ms Tirkey raised various claims in the Employment Tribunal. In evidence it was established that she was paid 11 pence an hour for her services, had to be on call 24 hours a day and did not have control of her own bank account. The Tribunal awarded her £183,774 for unpaid wages. Ms Tirkey also claimed her employers had discriminated against her in relation to her caste, which she argued was a protected characteristic of race under the Equality Act 2010. It was this claim which was addressed by the EAT.
The Respondents claimed that, had Parliament intended for caste to be a protected characteristic under the Act, it would have expressly included it as such – and in fact there is a power within the act for the regulations to be amended to introduce caste as a protected characteristic. The EAT held that in this instance caste was protected under the general definition of race in the Act, as the definition was not exhaustive and included, ‘colour, nationality, ethnic or national origin’. The ‘ethnic origin’ reference consequently allowing it to encompass personal inherited characteristics, which could include caste in relation to ‘descent’. The appeal tribunal was not of the view that the power to amend the Act to expressly include caste necessarily denoted that it would be excluded from the wider definition of race. However, they stopped short of stating that caste was definitively included as an autonomous concept in the legislation, appending a more cautious note to this decision. Ms Tirkey was able to proceed with her discrimination claim and did so successfully.
The content of this case has encouraged discussion on the continuing existence of slavery within the UK. This is a timeous reminder with the upcoming implementation of the Modern Slavery Act. The Act, which comes into force in October 2015, will create a new obligation for employers. Commercial organisations within the UK with a turnover of above £36 million will have to report annually on the steps they are taking to prevent the use of slavery and trafficking in their businesses and supply chains. Such reports must be transparent, in that they are to be signed by a director of the business and given prominent publication on the business’s website.
The impact of this obligation remains to be seen. Given its direction of travel at the larger players it may be that it will not have a trickle-down effect in prevention of future cases akin to Ms Tirkey’s. Nevertheless, the EAT decision and the discussion of caste discrimination could see an increase in such cases coming before the tribunals; rendering the UK a more hostile environment for those engaging in such practices.