Consultation paper on caste discrimination
Section 9 of the Equality Act 2010 (Equality Act) currently defines “race” to include colour, nationality and ethnic or national origins.
There is no provision in section 9, or existing case law, to explicitly prohibit discrimination on the grounds of caste.
In December 2010 the National Institute of Economic and Social Research published a report in relation to caste discrimination in Britain. The report suggested that the introduction of caste specific provisions in UK legislation would be more effective than existing discrimination laws to combat the problem of caste discrimination in employment.
The Enterprise and Regulatory Reform Act 2013 amended section 9(5) of the Equality Act so that a minister of the Crown must, by order, amend section 9 to provide for caste to be an aspect of race. This amendment to the Equality Act introduced a duty to legislate on the issue for the first time.
No further action was taken in relation to regulatory reform until 2 September 2016 when the government announced that it would proceed with a consultation on caste discrimination. The delays were attributed to the need to consider developing case law in the area and the change from labour to coalition government and their differing agendas.
The current case law is guided by Chandrok and another v Tirkey, where the Employment Appeal Tribunal (EAT) held that caste could be protected under the Equality Act to the extent that it is covered under ethnic origin. The EAT did not, however, make a definite decision as to whether or not this expressly includes caste.
On 28 March 2017 the Government Equalities Office published a consultation paper asking for opinions as to whether introducing legislation would be a more desirable means of protecting against caste discrimination moving forward. The consultation asks for views on the following:-
- Does relying on existing case law on ethnic origins provide an appropriate level of protection against caste discrimination?
- Which types of caste discrimination (if any) would not be covered by the concept of ethnic origin?
- What are the social and economic pros and cons of relying on case law as opposed to adopting specific legislation?
- Should the public sector equality duties and/or the provisions on positive action in the Equality Act apply to caste?
- Is there anything else the government should be doing to prevent caste discrimination?
The consultation paper offers two options:
- prohibiting caste discrimination through developing case law further; or
- prohibiting caste discrimination through specifying caste under the Equality Act.
The government has confirmed that even if option two is considered preferable, caste would not be defined in legislation and it would be for the courts and tribunals to interpret its meaning in light of the notes in the Equality Act.
The consultation paper is to run for 16 weeks, closing on 17 July 2017, and is relevant to all fields of discrimination law.
For more information contact our employment team on 0345 070 6000.