The extent to which the Equality Act 2010 (EqA) protects against discrimination on grounds of caste was a vexed question, which finally reached an appellate court in Chandhok v Tirkey [2015] IRLR 195. The Employment Appeal Tribunal (Langstaff P) has now decided that the existing concept of “ethnic origins”, part of the definition of the protected characteristic of “race” in s.9 EqA, is sufficiently wide to capture many acts of caste discrimination.

The legislative background to the case is unusual. Caste is a contested concept but most conceptions include features such as involuntary and permanent membership of caste, endogamy (marriage within a class), and innate characteristics, linked with  notions of purity and impurity. Following pressure from the House of Lords, when EqA was enacted the then government gave the relevant minister a power in s.9(5) to make “caste”, which was not defined, an aspect of race. Later, in 2013, the coalition government transformed this discretion into a duty but, taking with one hand what it gave with the other, also allowed the subsection to be repealed. Since then the timetable for amendment has stalled, with the government saying it is awaiting case-law developments as well as reviewing empirical data on caste discrimination. The political prevarication behind these unhappy compromises continues.

Section 9(5) was relied on by the respondents in Chandhok to argue that Parliament could not have intended caste discrimination to fall within the EqA unless and until legislation was introduced under that subsection. Langstaff P rejected this argument for various reasons. First, prior to the EqA, domestic law in the form of the Race Relations Act 1976 had already recognised that “ethnic origins”, part of the definition of race in s.9 EqA, could include descent from an actual or perceived ethnic group. In light of that wide and flexible test, in JFS [2010] 2 AC 728 the House of Lords held that the belief in Orthodox Judaism of matrilineal descent from a particular people was itself a test based on ethnic origins. Second, the EAT held that s.9(5) EqA was intended to widen, not narrow, the protection of the pre-existing law. Third, Langstaff P was pleased that this result was consistent with the UK’s international obligations, including the UN’s International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), Article 1 of which defines racial discrimination as including discrimination based on “descent”. He remitted the case to the tribunal to decide the facts.

Of course, not all forms of unequal treatment based on descent will amount to unlawful race discrimination under the EqA: examples given in JFS were of discrimination because a person is not the son of a peer (why are lawyers’ examples always of this sort?) or the son of a member of the SOGAT union (that’s better). Although Langstaff P left open the possibility that some forms of caste discrimination will not as a matter of fact be covered by the existing concept of race discrimination, it is likely that most if not all will be. Caste, just like race, is a social construct. Where a “caste” is perceived as different owing to religious belief, to beliefs of innate difference, or to beliefs of descent from a distinct people, in each case the JFS test is likely to be met.

The decision in Chandhok probably brings domestic law closer into line with the ICERD. The Committee for the Elimination of Racial Discrimination, which monitors compliance with the ICERD, “strongly reaffirmed” in its General Recommendation XXIX that discrimination based on descent in Article 1 ICERD includes discrimination “against members of communities based on forms of social stratification such as caste and analogous systems which nullify or impair  their equal enjoyment of human rights” and drew attention to factors that allow such communities to be recognised, including inability to alter inherited status, socially enforced restrictions on outside marriage, and dehumanising discourses. Working Parties established by the UN Sub-Commission on Human Rights have taken the same view.

The ICERD is referred to in the recitals Directive 2000/43/EC, on equal treatment between persons irrespective or racial or ethnic origins, so that interpretation of domestic law to comply with EU law provides an alternative means to the same result reached by the EAT. The Strasbourg Court, too, has taken account of it under Article 14 EHRC: see e.g. Timishev v Russia. In having regard to the ICERD, the judgment of EAT in Chandhok thus chimes with a growing trend in domestic and European cases on discrimination to ensure that domestic law accords with UN Treaties. Will this harmony of domestic law with international equality law be replaced by growing dissonance when the Tories proposals for human rights are enacted or if the UK leaves the EU? We are about to enter uncharted waters.