The power to make caste discrimination an aspect of race discrimination, originally contained in s.9(5) of the Equality Act 2010 (EqA), was one of the few substantive supplements to the predecessor discrimination legislation. In 2013 it was transformed into a duty, as I outlined in an earlier blog post. Now, following the judgment of the Employment Appeal Tribunal in Chandhok v Tirkey in 2014 and a public consultation launched in March 2017, the Government has announced in its response that it will repeal the provisions in s.9(5). We are back where we started, just as we were before the EqA replaced the Race Relations Act 1976.
The Government considers that, in light of Tirkey, victims of caste discrimination may rely on the existing provisions of the EqA protecting against race discrimination so that any additional legislation is unnecessary. Instead, according to the Minister for Women and Equalities it will produce ‘short guidance’ on the matter. By this long and tortuous route, the legislative provisions on caste discrimination have suffered the same fate as other additions in the EqA, such as the prohibition of dual discrimination and the proposed duties relating to socio-economic disadvantage.
As the Explanatory Notes to the EqA explain, caste embraces a variety of different belief systems, typically involving hereditary and permanent membership of a particular class, endogamy (marriage within a class), usually linked to notions of purity and impurity. The evidence suggests that discrimination based on caste, both at work and beyond, persists in the UK. Testament to this is the Tirkey case itself in which, following the EAT judgment, an employment tribunal recorded appalling treatment of Ms Tirkey, awarded her £266,536 in compensation, and found that she was harassed because of her race/caste, among other matters, by having her passport withheld, working constantly ‘on call’, seven days a week, being required to sleep on the floor not a bed, and not being allowed to leave home without another member of the family. In the event, however, Ms Tirkey recovered nothing, as related in the later High Court judgment, Tirkey v Director of Legal Aid  EWHC 3403 (Admin). A County Court failed to deal with her urgent application to stop her employers dissipating their assets, and the small proportion of her award she did recover was subject to a charge in favour of the Legal Aid Agency – another sorry chapter in the lamentable history of the enforcement of employment tribunal awards.
The big questions, of course, are whether some forms of caste discrimination might fall outside the scope of the protected characteristic of race in s.9 EqA, whether Tirkey will be overturned on appeal, or whether the absence of legislation will create undesirable legal uncertainty. The Government gave scant attention to these problems in the extremely brief reasons it gave at the conclusion of the consultation. Ignoring the sociological evidence on caste discrimination, the Government instead focused on the small number of cases which had reached the tribunals as a reason for not legislating. That the low level of litigation might reflect claimants’ vulnerability, or their lack of resources or legal assistance counted for nothing. Second, the Government considered that relying on emergent case-law rather than legislation was likely to create ‘less friction between different groups and help community cohesion’. Third, the Government highlighted the problem of defining caste in legislation, preferring the ‘flexibility’ that case-law provides. The suspicion is that protection against discrimination took a very poor second place to the Government’s eagerness to duck as soon as it could what it described as an ‘exceptionally controversial issue’.
Claimants, advisors and tribunals are therefore left only with the EAT judgment (on a strike out) in Tirkey and the general case-law on the meaning of ‘race’ for guidance on whether ‘ethnic…origins’ in s.9 EqA can embrace caste discrimination in all its forms. Where the less favourable treatment is because the claimant is believed to be a member of a separate race or ethnic group, or perceived to be descended from such a group, the existing provisions of s.9 should bite, regardless of the religious or other foundations of that belief. Whether this is an improvement on a statutory definition is very much open to doubt. Various respondents to the Government consultation highlighted, for example, some of the difficult issues which may arise where it is contended that the discrimination arose from occupation or social standing, not from perceived ethnic origins. Exploring belief systems which may be 2,500 years-old and how exactly they manifest themselves in the perceptions of the particular respondents is unlikely to be a task which many tribunals welcome.
Legislation would also ensure the Government fully complied with the calls of the UN Committee for the Elimination of Racial Discrimination (CERD) to protect against caste discrimination simplicter in order to comply with the International Convention on the Elimination of all Forms of Racial Discrimination, Article 1.1 of which expressly includes discrimination based on descent and which has been interpreted by the CERD to extend to caste discrimination. But, at the end of an eight-year journey, we are back with the phrase ‘ethnic…origins’ in s.9, itself lifted from the definition in the Race Relations Act 1976, and analyzing whether the uncertain boundaries of that concept capture all forms of caste discrimination.