Caste discrimination again: Tirkey v Chandhok & Anor

Success for Claimant leaves the issue of caste unresolved

The previous proceedings

In Chandhok & Anor v Tirkey (Race Discrimination) [2014] UKEAT 0190 14 1912, about which we posted in December, Ms Tirkey 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”.

When the Chandhoks applied to strike out this amendment Langstaff J, sitting alone, concluded that though “caste” as an autonomous concept did not presently come within s 9(1) of the Equality Act, 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 [at the original Employment Tribunal hearing] was right so to determine” [54].

The recent proceedings

A differently-constituted Employment Tribunal (Employment Judge Ord, Mr J Ruddick & Mr M Reuby) returned to the matter in Tirkey v Chandhok & Anor [2015] ET 3400174/2013.

The facts

Ms Tirkey was born in 1976 in a small rural village in Bihar, Eastern India. She described herself as being of the “servant class” [10] She is a Christian [2]. Mrs Chandhok was born in India to Afghan Hindu parents and has been a British citizen since 2005. She told the Tribunal that she was now a practising Buddhist. Mr Chandhok is a Hindu born in Afghanistan: he and his parents fled to Germany during the Afghan war in 1985 and he has lived in the UK since 1999. He is a German national [2].

Ms Tirkey received only basic education because the expectation for her and others was to become servants and domestic workers in wealthier parts of India. Her family had always carried out domestic work of one kind or another [8]. Her family were Adivasi: dark-skinned and poor. Adivasi could be either Christian or Hindu and in the “caste pyramid” they were the lowest class [9]. That evidence was entirely unchallenged and the Tribunal accepted it [10]. Ms Tirkey further claimed that her ethnic origin, including her nationality and her hereditary position in society (in whole or in part on the basis of her caste) was the reason why she was treated the way that she was by the Chandhoks. She also claimed that she was unable to practise her religion [2].

The Tribunal concluded that the information provided to the High Commission to obtain Ms Tirkey’s visa “was in many areas false” and came from the Chandhoks, “either by … directly giving the information in question or by prompting the Claimant to do so (without any explanation to her or understanding by her of why she would be required to give the relevant answers)” [97]. Crucially, the fact that the Chandhoks were willing to deceive the High Commission about the length of time for which Ms Tirkey had been employed, her working and living conditions, her salary and her hours of work (all of which the Tribunal found had been falsely represented to the High Commission) led it to conclude that the Chandhoks

“… were anxious that no one (whether in authority or the Claimant herself) should be aware of the true nature of the life which awaited the Claimant. The treatment afforded to the Claimant during her employment was for this reason. It was because she was a low caste, Indian national, who could not speak English and by upbringing and by her inherited position in Indian society expected and was expected by others to do nothing more than serve others. She was the ideal recruit for the Respondents and it was for those reasons they treated her as they did [98: emphasis added].

As to the practice of Ms Tirkey’s religion (or the lack of opportunity to practise it):

  • she was denied the chance to bring her Bible with her to the United Kingdom: the Chandhoks denied that she was told she was not to bring her Bible but could not offer any cogent explanation as to why, in that case, she did not either bring it with her or buy one in the UK [98];
  • the first possible reason for that was that the Chandhoks wished to deny her the opportunity to practise her religion because it was not theirs: the second was that they were exercising control over her and knew that she would have neither the time nor the opportunity to read it or do anything else to practise her religion while under their control [99];
  • they were clearly aware of her religion (she wore a cross on a neck-chain and by virtue of carrying a Bible was expressing that she held a religious belief) and by not permitting her to bring her Bible they were exercising control over her which lasted throughout her employment [100];
  • because she worked seven days a week and because of the restriction on her movements she was unable to attend church: and the Tribunal accepted that she would have wished to do.

The Tribunal concluded that the Chandhoks’ actions had been part of a strategy to control Ms Tirkey’s activities. Letting her attend church would have given her uncontrolled access to the outside world:

“… the refusal to allow the Claimant to carry her holy book with her to the United Kingdom and the maintenance of a seven day per week regime of control, as a result of which the Claimant was unable to attend church to express her religious belief and join in religious celebration, was a result of the provision, criterion or practice exercised by the Respondents as the Claimant’s employers to control her movements and her behaviours. This practice would place anyone who wished to celebrate and exercise their religious beliefs by reading a holy book and/or by attending religious services at a disadvantage by not allowing them the free practice of their religion. The Claimant suffered that disadvantage as she was denied access to her holy book and was denied the opportunity to attend services or otherwise practise her faith” [101].

The judgment

The Tribunal found unanimously for Ms Tirkey, holding inter alia that:

  • the Chandhoks had failed to pay her the National Minimum Wage throughout the period of her employment;
  • she had been unfairly dismissed;
  • she had been the victim of unlawful harassment on the ground of her race;
  • she had been the victim of indirect religious discrimination; and
  • the Chandhoks were in breach of the Working Time Regulations.

On the religious discrimination point, it held that Ms Tirkey was the victim of indirect discrimination on the ground of her religion or belief because, as a result of the Chandhoks’ desire to control her activities, she was denied the opportunity to possess a holy book and denied the opportunity to practise her religion [102].

As to the specific issue of caste discrimination, one of the questions posed in the recital of issues at [6] was this:

“Insofar as that treatment amounts to less favourable treatment on the grounds of caste, should that treatment be regarded as less favourable treatment on the grounds of religion [6.30]

However, the judgment did not explore the point, presumably because the Tribunal found the broader issue of unjustified indirect religious discrimination proved and decided that it was not necessary to take the caste issue further.

Comment

At the earlier hearing, Mr Justice Langstaff commented [55]:

“the parties may have been gearing up to secure a definitive decision in principle that discrimination on the ground of caste as such either was, or was not, within the scope of the Equality Act 2010. I hope I shall be forgiven if I have disappointed anyone by having referred to very few of these authorities in the course of this judgment. 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.”

No further clarification was given in the recent judgment, and while the Government, the National Council of Hindu Temples UK and others opposed to the inclusion of caste as a protected characteristic within the 2010 Act will argue that the success of Ms Tirkey’s action demonstrates that the existing legislation is adequate, others, including the National Secular Society and the Anti Trafficking and Labour Exploitation Unit, will claim the opposite.

The outcome for Ms Tirkey was broadly welcomed. However, her solicitors, ATLEU, observed:

“[t]he Legal Aid Agency refused to fund Ms Tirkey’s representation for 17 months. They suggested that Ms Tirkey’s case was not of ‘sufficient importance or seriousness’ and that it was ‘only a claim for money’. They said that she could represent herself. This was a bar to Ms Tirkey pursuing her complaints as she would have faced the ordeal of cross-examining the employers who had kept her in domestic servitude for years. It was only with relentless legal representation that funding was eventually secured.

It is our experience that victims seeking to hold their traffickers to account find their applications for legal aid are routinely refused. This judgment is a resounding victory for the Claimant, a victory which would not have been achieved without legal aid. We feel strongly that the Legal Aid Agency should be assisting victims to access justice not putting up barriers to it. Other victims who do not have the necessary legal support, conviction and tenacity would have given up in the face of such comments and delays.”

Her counsel, Chris Milsom of Cloisters, added

“[t]he government has expressed a commitment to tackle modern slavery. However it is concerning that the new Deduction from Wages (Limitation) Regulations 2014, which were implemented in response to holiday pay claims, are likely to prevent victims of trafficking receiving the full amount of National Minimum wages owed due to the two-year backstop in the new regulations.”

The National Council of Hindu Temples UK described Tirkey as “a straightforward Employment Tribunal case, a particularly grave case, but a case of terrible abuse by an employer of a vulnerable employee and the judgment issued by the Tribunal has found, quite rightly in favour of Ms Tirkey”; but suggested that the focus on caste was an example of “[t]he sustained denigration of the global Dharmic community (Hindus Sikhs and Jains)” which “is of paramount importance if the right-wing fundamentalist evangelical movement is to recover lost ground in the 1st world and ‘harvest souls’ in the 3rd world”.

In our post Caste discrimination legislation – a (long) timeline, we suggested that while Baroness Williams of Trafford, Parliamentary Under-Secretary of State, DCLG, assured the House repeatedly that Government was “actively considering” the matter, her closing comments suggested an unwillingness to act:

“My Lords, the case law provides potential protection for someone wishing to claim caste discrimination, which is what all sides of this House wanted during earlier debates. We need to consider carefully whether putting the word ‘caste’ into the Act would actually change or clarify the legal position.” [HL Deb 15 July 2015 Vol 764(32) c 572]

Prakash Shah of QMUL takes a contrary view: see What’s caste got to do with it? Deception and the law on caste discrimination.

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[Footnote: We have used the EAT spelling of the respondents’ surname, “Chandhok”, rather than that of the ET transcript, “Chandok”. We assume that the EAT’s spelling is more likely to be the correct one in view of other errors in the ET transcript, such as its inability to distinguish between “practice” and “practise”.]

Frank Cranmer and David Pocklington

Cite this article as: Frank Cranmer and David Pocklington, “Caste discrimination again: Tirkey v Chandhok & Anor” in Law & Religion UK, 28 September 2015, http://www.lawandreligionuk.com/2015/09/28/caste-discrimination-again-tirkey-v-chandhok-anor/.

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