The first Employment Appeal Tribunal decision to address caste discrimination has said that it is capable of being a type of race discrimination. However the ruling does not take matters much further than this broad statement of principle. The appeal was in fact over the narrower issue of whether the employment judge had been wrong to refuse to strike out an element of the claim based on the claimant’s status as a member of Adivasi people. As a result she claimed that she had been regarded as being of a lower caste than that of the respondents, who had employed her as a domestic worker.
The EAT criticised the employment judge for embarking on an enquiry about caste discrimination at a preliminary stage without this aspect of the claim being set out in the pleadings or any evidence being called. It was however able to confirm that the definition of race in the Equality Act could extend to hereditary cast, since it already expressly includes “ethnic origins”. That element of the definition has been carried over from the Race Relations Act. Thirty years ago the House of Lords used it to extend protection to Sikhs, who are not regarded as a separate race, but share a set of cultural characteristics largely based on descent. But the EAT’s decision gives few pointers about the considerations which would be relevant when extending this approach to deal with discrimination based on caste.
The debate over whether there should be an express prohibition of caste discrimination dates back to the passing of the Equality Act in 2010. The outgoing Labour Government resisted calls to provide for this in the Act, including instead a regulation-making power to keep options open pending further research. The issue was revisited during the passage of the Enterprise and Regulatory Reform Act three years later, with the Coalition Government taking a similar stance. In the end a comprise was reached. The Equality Act was amended so that there now is a positive obligation to make regulations providing for caste to be an aspect of race, though no precise time table was stipulated. Details of the relevant debates are included in the Commons Library briefing note on caste discrimination, which has recently been updated.
Nearly two years on, there is still no sign of the consultation promised in advance of these new regulations. It is apparent that it will be difficult to provide a clear definition of caste for these purposes, but if the Government had been hoping for help from the EAT in this latest decision, it will be disappointed.