Chandhok v Tirkey

For strike-out purposes, a discrimination claim should generally proceed where the pleaded facts could, if proved, fall within a protected characteristic. The exercise remains available in clear cases, including jurisdictional time bars, abuse of process, or pleadings which disclose no more than a bare possibility of discrimination. The definition of race in section 9(1) of the Equality Act 2010 is not narrowed by section 9(5). Although caste as an autonomous concept was not formally added as a separate protected characteristic, facts associated with caste may fall within ethnic origins where they are sufficiently connected with descent and ethnicity. The claim must be determined by the facts proved, rather than by the label applied to them.

The claimant, employed as a domestic worker, alleged demeaning treatment and amended her Employment Tribunal claim to rely on ethnic and national origins, referring also to caste and inherited status. The appellants applied to strike out the caste-related amendment, arguing that caste was excluded from race by section 9 of the Equality Act 2010, particularly in light of section 9(5) and its amendment by section 97 of the Enterprise and Regulatory Reform Act 2013.

The Employment Tribunal refused the application. The appeal concerned both the proper reading of the pleading and whether the pleaded facts could potentially establish unlawful race discrimination, especially through ethnic origins linked to descent.

1. Appeal dismissed. The pleading was not properly characterised as a freestanding claim for caste discrimination. Read as a whole, it alleged race discrimination based on ethnic and/or national origins, with caste and lower status relied on as factual matters relevant to that allegation.
2. An Employment Tribunal must focus on the essential case set out in the ET1 and response. Parties cannot expand the case after the relevant limitation period by relying on witness statements or other material not contained in the pleadings. The tribunal should avoid undue formalism, but must preserve clarity, fair notice, proportionate costs, jurisdictional certainty and focus.
3. Strike-out in discrimination claims must be exercised sparingly and cautiously because such claims are fact-sensitive and commonly require an evaluation of why the respondent acted as alleged. This is not an absolute prohibition. Strike-out may remain appropriate for a jurisdictional time bar, abuse of process, or a pleading which, even taken at its highest, supplies only a bare possibility of discrimination.
4. The wide and flexible meaning of ethnic origins established in Mandla v Dowell Lee and applied in the Jewish Free School case includes descent where it is linked to racial or ethnic origin. Section 9(5) did not restrict section 9(1); it provided a power to supplement or clarify it. Parliament’s later legislative understanding could not determine the statutory meaning, which was for the court to construe.
5. Caste was not, at that stage, a separately defined autonomous protected characteristic. Nevertheless, facts described as caste-related could fall within section 9(1), particularly ethnic origins, if the evidence showed that the claimant was treated less favourably for reasons which more than minimally included the respondent’s view of her status or origins and that status was bound up with ethnic origins. The claim therefore could not properly be struck out before the full facts were determined. The unnecessary assertion that section 13 prohibited all caste discrimination was to be excised.

1. Employment Tribunal: Employment Judge Sigsworth refused to strike out the caste-related part of the amended claim.
2. Employment Appeal Tribunal: the appeal was dismissed. The claim could proceed because the pleaded facts might fall within section 9(1) of the Equality Act 2010.