Caste is not currently one of the protected characteristics in the Equality Act 2010. However, back in 2013 the Enterprise and Regulatory Reform Act amended the Equality Act to require the government to provide for caste to be an aspect of race and the government announced that there would be a public consultation on the prospective legislation. The target date for the new law to be in place was Summer 2015. Clearly this timetable slipped, partly as a result of Chandhok v Tirkey at the end of 2014, in which the EAT found that the definition of "race" in the Equality Act, which includes "ethnic origin", was wide enough to cover caste.
However, the government is now going ahead with a consultation, targeted at service providers as well as employers – any legislation would apply to discrimination in the provision of goods and services as well as in employment. The consultation, which ends on 17 July, presents two options:
• prohibit caste discrimination through case law.
• specify caste as a protected characteristic in the Equality Act.
Although Chandok v Tirkey found that in principle the concept of race discrimination could include discrimination because of caste, it recognised that this would not always be the case in fact. Despite that, the government appears to favour the first option, believing that, post Chandhok, it is likely that anyone who believes that they have been discriminated against because of caste could bring a race discrimination claim. They also point out that some traveller groups are accepted as protected through case law even though there is no mention of those groups in the Act. The downside of specifying caste in the Act itself would be the need to disapply certain provisions which might prove problematic (such as positive action and the public sector equality duty) and, more generally, the danger of creating or entrenching notions of caste consciousness.