The Government announced in September its intention to undertake a full public consultation on the issue of caste and the Equality Act – a consideration which has been contemplated since the enactment of the Act in 2010. The aim of the consultation is to obtain views from the public on whether the Act requires additional protection for those who are victims of caste discrimination in the UK. But what do we mean by ‘caste’ and what meaningful difference would any amendment make given the protections that are already in place?
What is ‘caste’?
The Explanatory Notes of the Equality Act provide that ‘caste’… “denotes hereditary, endogamous (marrying within the group) community associated with a traditional occupation and ranked accordingly on a perceived scale of ritual purity. It is generally (but not exclusively) associated with South Asia, particularly India, and its diaspora”. Statistics published in 2010 by the Government Equalities Office stated that the effects of caste discrimination are predictably worse for the lowest castes, an estimated 50,000-200,000 people in the UK.
Section 9(5) of the Equality Act originally said that ‘A minister of the Crown may by order amend this section so as to provide for caste to be an aspect of race’. This was amended by the Enterprise and Regulatory Reform Act 2013 to read ‘must by order amend…’. This would suggest that the issue of caste has become a more serious consideration for Parliament in recent years. However, it could well be argued that case law on the subject has come to a conclusive position already without any necessity for the Act to be amended.
What current protections are in place?
Until 2015 case law had been unclear on whether race should be interpreted as including caste. In Naveed v Aslam and others it was argued that the drafting of s9 Equality Act allowing for the amendment of the section at some point in the future to incorporate caste meant that it should not be included in the definition of race until then.
This has subsequently been clarified in the Employment Appeal Tribunal. In Chandhok & another v Tirkey last year the EAT upheld a decision that while ‘caste’ as an autonomous concept did not at that time fall within the definition of ‘race’ in the Equality Act, many aspects of ‘caste’ might be capable of doing so in their own right, due to the inclusion of ‘ethnic origin’ in that definition.
Whilst this decision demonstrates that there is some protection from caste discrimination and harassment already in place, Justice Langstaff emphasised, “My focus has been on the appeal in this particular case, in its particular circumstances: I have not seen my role as being to resolve academic disputes, and establish more general propositions” and so there is no guarantee that this ruling would protect others who face discrimination relating to caste. The Equality Act was enacted ‘to reform and harmonise equality law’ and ‘to require the exercise of certain functions to be with regard to the need to eliminate discrimination and other prohibited conduct’. As the opportunity remains to implement these objectives formally and expressly in relation to caste, perhaps the decision to provide an extra layer of clarity and protection would be no bad thing.
What implications will this have for employers?
In reality, the impact of an amendment to the Equality Act to include caste in the definition of race would be limited for most employers. Only some nationalities will recognise caste as a basis for treating one employee more or less favourably than another – others will not care about or even recognise differences in caste in the first place, and for them the likely amendment to the Equality Act will be of little moment. Practically speaking, due to the decision in Chandhok, employers should already be in a position where they have addressed this issue. However, employers should be mindful of the following:
- Taking extra precautions to not discriminate directly or indirectly during recruitment or the course of employment. Adding ‘caste’ as an express protected characteristic to the Equality Act will widen the scope for discrimination claims.
- Increased training about meaning of ‘caste’ and how this may affect an employer’s workforce, especially where the workforce contains a material number of people whose original and/or upbringing will make them vulnerable to allegations of caste discrimination. Employers may be advised to prepare training session for HR on what ‘caste’ means as it may be a concept that is less understood than that of ‘gender’ or ‘race’.
- Revising equality policies and procedures to reflect the express change.
- Discouraging caste as a topic of debate or banter in the workplace in line with race and sex, etc.