In March last year, the Government launched a consultation on “Caste in Great Britain and Equality Law” to obtain the views of the public on how best to ensure that appropriate and proportionate legal protection exists for victims of caste discrimination.
The consultation ran in total for six months, closing in September 2017.
The Government’s response to the consultation was published in July 2018.
Pam Sidhu of The Wilkes Partnership considers the key findings.
What is caste discrimination?
Caste systems are a form of social and economic governance based on principles and customary rules. Caste systems involve the division of people into social groups (castes) where assignments of rights are determined by birth, are fixed and hereditary. The assignment of basic rights among various castes is both unequal and hierarchical, with those at the top enjoying most rights coupled with least duties and those at the bottom performing most duties coupled with no rights. The system is maintained through the rigid enforcement of social ostracism (a system of social and economic penalties) in case of any deviations.
Government response to consultation
The consultation considered different ways of protecting people from caste discrimination.
The first option was to implement a duty, which was introduced by Parliament in 2013, to make caste an aspect of race discrimination under the Equality Act 2010. The second was to rely on emerging case law which, in the view of Government, showed that a statutory remedy against caste discrimination was already available through existing provisions in the Equality Act, and to invite Parliament to repeal the duty on that basis.
The consultation received over 16,000 responses, showing the importance of this issue for many people in particular communities. About 53% of respondents wanted to rely on the existing statutory remedy and repeal the duty, 22% rejected both options (mainly because they wished the Government to remove the concept of caste in British law altogether) and about 18% of respondents wanted the duty to be implemented.
The Government said its primary concern was to ensure that legal protection against caste discrimination was ‘sufficient, appropriate and proportionate’.
It said that ‘after careful consideration of all the points raised in the consultation, we have decided to invite Parliament to repeal the duty because it is now sufficiently clear that the Equality Act provides this protection’.
The Government referred to the judgment of the Employment Appeal Tribunal in Tirkey v Chandhok  [ICR 527] to show that someone claiming caste discrimination can rely on the existing statutory remedy (of race discrimination) where they can show that their “caste” is related to their ethnic origin, which is itself an aspect of race discrimination in the Equality Act.
The judgment is binding on all who bring a claim in an employment tribunal, has status equivalent to a High Court decision, and is based on the application of case law decided at a higher level. The Government considered that the Tirkey judgment served as a ‘welcome clarification of the existing protection under the Equality Act – helping to deter those inclined to treat others unfairly or unequally because of conceptions of caste’.
It concluded that the decision made the introduction of additional statutory protection in the Equality Act unnecessary and stated that it intends to legislate to repeal the duty for a specific reference to caste as an aspect of race discrimination in the Equality Act in due course.
In doing so, the Government said that it recognised that this was an area of domestic law which may develop further, and would monitor emerging case law in the years ahead.
It went on to say that ‘In order to ensure that people know their rights and what sort of conduct could be unlawful under the Equality Act, we also intend to produce short guidance before the repeal legislation is introduced. We want this to be of particular use to any individual who feels they may have suffered discrimination on grounds of caste. It should also help employers, service providers and public authorities who are outside those groups most concerned with caste and who may have little awareness of caste divisions.’
Pam Sidhu comments “It is perhaps not surprising that that the Government has opted for a route that effectively preserves the status quo, especially given the small number of caste discrimination cases brought to date. However, at first glance, the decision does appear to be a proportionate one in light of the availability of a potential remedy for claimants through existing case law. We await sight of the Government’s guidance note with interest.”
For advice on any employment related matter please contact Pam Sidhu on 0121 710 5815 or [email protected]. You can also reach any member of the Employment Team on 0121 233 4333.