Facts
Claims and appeal
Decision
Comment
In the first case of its kind, an employment tribunal has found that an exploited migrant worker was the victim of unlawful discrimination because of her caste.(1)
This is not a typical tribunal claim faced by employers, but a sad story about a migrant domestic worker who, the tribunal found, had been kept in conditions by her employers (the Chandhoks) that were a "clear violation of her dignity".
Other than a few payments totalling approximately £3,000, Permila Tirkey was not paid for her four and a half years' service. The Chandhoks paid money into an account that they had set up in Tirkey's name, but kept her bank card from her – a redundant measure, given that she did not know how to use one – and would use the account themselves (in one instance withdrawing £100 to spend at a casino).
Tirkey never had a day off and was working or on call 18 hours a day. She was not given a proper bed – just a mattress on the floor – and had to share a room with the Chandhoks' twin babies. Her passport was withheld from her and kept by her employers in a safe. Tirkey, a Christian, was not allowed to read or even keep a bible and could not attend church.
Tirkey managed to escape her servitude and, with the help of Kalayaan (a charity that helps exploited migrant domestic workers), found emergency accommodation and brought various employment tribunal claims.
Tirkey brought claims of:
- unfair dismissal;
- breach of the national minimum wage;
- breach of the Working Time Regulations;
- failure to provide a statement of terms and conditions; and
- religious discrimination.
She also brought a claim of harassment because of her caste. The employment tribunal found at a preliminary hearing that caste is immutable and hereditary and fits readily into the category of descent, so it may be considered an aspect of race.
The Chandhoks appealed to the Employment Appeal Tribunal (EAT), which also found in favour of Tirkey. It held that since race includes 'ethnic origins', which comprise aspects of descent, this concept was wide and flexible enough to cover Tirkey's situation. Therefore, caste discrimination may be considered to fall within the definition of race discrimination. The case was returned to the employment tribunal for a full hearing.
The employment tribunal found that the Chandhoks had sought someone who would not just be in their service, but who would also be servile and of a lower status than them. They wanted an employee who would be unfamiliar with UK employment law and whom they could treat without consequence. Tirkey was acceptable to the Chandhoks because "she was by birth, by virtue of her inherited position in society, and by virtue of her upbringing – her ethnic origins – a person whose expectations were no higher than to be a domestic servant".
Tirkey's claim was successful. She was awarded £183,000 for her national minimum wage claim. A further hearing will take place on November 5 and 6 2015 to determine appropriate compensation for her other claims.
The law on caste discrimination is not settled. Although Tirkey was successful in her claim, others will not necessarily be equally successful. The EAT made it clear that its judgment was based on the facts of her case. If a prospective claimant's caste is not so closely connected to descent, it may prove much harder to bring a claim of race discrimination.
The government had committed to bring a section of the Equality Act 2010 banning caste discrimination into force by Summer 2015, but it has yet to do so. In July 2015 Equalities Minister Caroline Dinenage was asked by the then back-bench rebel and long-time anti-caste discrimination campaigner Jeremy Corbyn what plans there were to enact caste discrimination legislation. Dinenage replied that the government "will continue to look at this issue carefully", but gave no indication of when, or whether, it plans to follow through on its commitment.
For further information on this topic please contact Tom Heys or Rebecca Rule at Lewis Silkin by telephone (+44 20 7074 8000?) or email ([email protected] or [email protected]). The Lewis Silkin website can be accessed at www.lewissilkinemployment.com/en-gb/.
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