The government has announced that, following a consultation on caste discrimination, it will not make caste an aspect of race discrimination under the Equality Act 2010.
The consultation, which received over 16,000 responses, considered two different options to protect people from this form of discrimination. The first (which it has now rejected) was to implement a duty introduced by Parliament in 2013 to make caste an aspect of race discrimination under the Equality Act 2010. The second was to rely on emerging case law showing that a statutory remedy against caste discrimination was already available through existing provisions in the Equality Act.
Just over half of the respondents to the consultation (53 per cent) wanted to rely on the existing statutory remedy and repeal the duty, while 22 per cent rejected both options (mainly because they wanted the government to proscribe the concept of caste in British law altogether), while about 18 per cent of respondents wanted the duty to be implemented.
The government has now said that it is clear from the judgment of the Employment Appeal Tribunal in Chandhok v Tirkey (weekly LELR 409) that someone claiming caste discrimination can rely on the existing statutory remedy under section 9(1)(c) of the Equality Act if they can show that their caste is related to their ethnic origin.
The government therefore intends to legislate to repeal the duty for a specific reference to caste as an aspect of race discrimination in the Equality Act once a suitable legislative vehicle becomes available. Whilst recognising that this is an area of domestic law which may develop further, the government has also said that it will monitor emerging case law in the years ahead. To make clear that caste discrimination is unacceptable it will, if appropriate, support a case with a view to ensuring that the higher courts reinforce the position set out in Tirkey.
In order to ensure that people know their rights and what sort of conduct could be unlawful under the Equality Act, the government also intends to produce short guidance before the repeal legislation is introduced. Although it is mainly aimed at individuals who feel they may have suffered discrimination on grounds of caste, it should also help employers, service providers and public authorities who are outside those groups most concerned with caste and who may have little awareness of caste divisions.
Jo Seery of Thompsons Solicitors commented: “The Equality Act 2010 was amended on 25 June 2013 to put a clear duty on Government to specifically include caste as a form of race discrimination. This followed a Government commissioned report by the National Institute of Economic and Social Research which found evidence of caste discrimination and concluded that the Equality Act “cannot cover caste discrimination and harassment as effectively as caste specific provisions would”.
“The Government should have included protection from caste discrimination then. It didn’t. Instead, it launched a public consultation between March and September 2017. The decision not to include caste discrimination as a specific form of race discrimination and instead rely on 'the flexibility of case law” provides limited, if any protection. More worryingly, as we head towards our exit from Europe, is the ease with which Government can decide just to repeal anti-discrimination legislation on the basis that it is not “proportionate” !”
Visit the government website to read a copy of the government’s response and its analysis report.