In 2013, s.9(5)(a) of the Equality Act 2010 was amended to impose a duty to introduce specific legal protection to make caste an aspect of race for the purposes of the Act: it currently reads. “[A Minister of the Crown] must by order amend this section so as to provide for caste to be an aspect of race”. The Government contended, however, that the subsequent Employment Appeal Tribunal judgment in Chandhok & Anor v Tirkey [2014] UKEAT 0190/14/1912 “established that many of the facts relevant in considering caste in many of its forms might be equally capable of being considered as part of a person’s ethnic origins, which is already part of the existing race provisions within the Act”.
The Government consulted on whether suitable legal protection against caste discrimination would be better ensured by exercising the duty imposed by s.9(5)(a) or by relying on emerging case-law under the Equality Act as developed by courts and tribunals. The consultation ended in September 2017 and the outcome has been published as Caste in Great Britain and equality law: a public consultation – Government consultation response. Of the 16,138 who answered, there were three broad categories of response: more than 8,000 favoured relying on the case-law, 2,885 favoured legislation and a bigger number – 3,588 rejected both options.
The Government’s preference is to rely on the case-law, for three reasons:
- “Legislating for caste is an exceptionally controversial issue, deeply divisive within certain groups..: it is as divisive as legislating for ‘class’ to become a protected characteristic would be across British society more widely. Reliance on case-law and the scope for individuals to bring claims of caste discrimination under ‘ethnic origins’ rather than ‘caste’ itself is likely to create less friction between different groups and help community cohesion”;
- “The consultation responses identified no significant aspects of what constituted ‘caste’ that would not adequately be captured by either the ethnic origins provisions already in the Equality Act 2010, or by other parts of the Act such as those relating to religion or belief”; and
- There is no “effective and suitable” definition of “caste”; and interpreting it too narrowly or too broadly “could give rise to either the legislation failing to cover some of those it was intended to protect or risk importing concepts into law that it was not designed to cover”.
In short:
“Given the EAT judgment in Tirkey v Chandhok, we consider that it is likely that anyone who believes that they have been discriminated against because of caste could bring a race discrimination claim under the existing ethnic origins provisions in the Equality Act 2010.”
Both the National Secular Society and the Official Opposition have expressed their disappointment at the decision.
Comment
In a comment on an earlier post, I suggested that there were two principal problems with legislating on the matter: that because these issues are highly fact-sensitive the courts would immediately start unpicking the legislation and that any definition would have to be so general in order to catch every possible act of discrimination that it might end up catching discrimination that was generally regarded as justifiable.
I suspect that, in the circumstances, the Government’s response is not unreasonable – not least because it accords with the views of the majority of respondents to the consultation. But I do hope that ministers keep the matter under review.
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