Outlaw caste discrimination

A provision in the Equality Act 2010 that enabled secondary legislation to be passed by a Ministerial Order was replaced in 2013 by an instruction by Parliament to the Government to outlaw such discrimination, a move strongly endorsed by the United Nations, most recently in 2016.

The Government has not yet complied, but in April 2017 it published a consultation seeking views on caste in Great Britain and on equality law.

Out of the possible approaches set out in the consultation, the Government's preferred option is not to legislate, but instead await a development of case law. One problem with this approach is that case law gives much poorer access to justice to those alleging discrimination. The Government acknowledges that case law does not currently offer protection, and there is no guarantee that it ever will. Indeed, it is unlikely that case law will be 'developed' as the Government implies is inevitable.

In the case of Tirkey v. Chandok, an Employment Appeal Tribunal considered whether Ms Tirkey's claim for caste discrimination fell within the definition of "race" in section 9 of the Equality Act 2010. While caste discrimination was alleged, no judgment about it was made, and the case was decided on other aspects. Caste as such was not a protected characteristic under the Equality Act but, dependent on the facts, aspects of it may be. This means that, while caste discrimination can be found to constitute unlawful race discrimination under the Equality Act 2010, this will not necessarily be so in all cases. In light of this case, the Equality and Human Rights Commission called on the Government to make an express provision for caste discrimination in the Equality Act 2010 to ensure legal clarity.

The Government also says it wants to be "careful not to create or entrench any notion of caste consciousness or caste-based practices into British society". Whilst this is an understandable concern, outlawing caste-based discrimination would send the clearest signal possible that such discrimination in the public sphere will not be tolerated.

The Government has also expressed concern about associating caste issues with any one particular community or religion. Such an association is much more likely if the protection is through case law as any case is likely to be religion-specific whereas legislation would not be.

The NSS has been closely involved with the introduction of both legislative provisions passed by the UK Parliament concerning caste. A provision in the Equality Act 2010 that enabled secondary legislation to be passed by a Ministerial Order was replaced in 2013 by an instruction by Parliament to the Government to outlaw such discrimination, a move strongly endorsed by the United Nations, most recently in 2016.

The Government has not yet complied, but in April 2017 it published a consultation seeking views on caste in Great Britain and on equality law.

Out of the possible approaches set out in the consultation, the Government's preferred option is not to legislate, but instead await a development of case law. One problem with this approach is that case law gives much poorer access to justice to those alleging discrimination. The Government acknowledges that case law does not currently offer protection, and there is no guarantee that it ever will. Indeed, it is unlikely that case law will be 'developed' as the Government implies is inevitable.

In the case of Tirkey v. Chandok, an Employment Appeal Tribunal considered whether Ms Tirkey's claim for caste discrimination fell within the definition of "race" in section 9 of the Equality Act 2010. While caste discrimination was alleged, no judgment about it was made, and the case was decided on other aspects. Caste as such was not a protected characteristic under the Equality Act but, dependent on the facts, aspects of it may be. This means that, while caste discrimination can be found to constitute unlawful race discrimination under the Equality Act 2010, this will not necessarily be so in all cases. In light of this case, the Equality and Human Rights Commission called on the Government to make an express provision for caste discrimination in the Equality Act 2010 to ensure legal clarity.

The Government also says it wants to be "careful not to create or entrench any notion of caste consciousness or caste-based practices into British society". Whilst this is an understandable concern, outlawing caste-based discrimination would send the clearest signal possible that such discrimination in the public sphere will not be tolerated.

The Government has also expressed concern about associating caste issues with any one particular community or religion. Such an association is much more likely if the protection is through case law as any case is likely to be religion-specific whereas legislation would not be.