Written by Brabners LLP
Under employment law, an individual who has been treated less favourably can bring a claim for unlawful discrimination in certain circumstances. In order to bring a claim, potential claimants must normally be able to demonstrate that they have one of the ‘protected characteristics’ contained in the Equality Act 2010 (as well as less favourable treatment).
The protected characteristics are:
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Religion or belief
- Sexual orientation.
It has been noted by the Government that this list does not contain ‘caste’ – as a result, there have been question marks over the protection afforded to individuals who have been subject to caste discrimination.
So what do we mean by caste then? Well, that is part of the difficulty for the Government – finding a concise and workable definition to use in legislation is very difficult. One online dictionary definition of ‘caste’ is a ‘class or group of society who all share common cultural features’.
The Government set up a public consultation to review what protection the law provides to people who have been discriminated by ‘caste’. The public consultation was open between March and September 2017. The Government has now provided its response to the consultation.
As a result of section 97 of the Enterprise and Regulatory Reform Act, the Government has a duty to make caste an aspect of race (a protected characteristic already covered under the Equality Act). In its response to the consultation, the Government confirmed that it was eager to avoid any promotion, creation or entrenchment of ideas surrounding caste. Accordingly, the Government has confirmed that its preference is to rely on emerging case-law in the courts, instead of inserting a definition of ‘caste’ into the list of protected characteristics in the Equality Act.
The Government’s rationale for this decision was wide ranging and included; the flexibility that case-law can bring, the difficulties in creating a commonly accepted definition of caste, the potential inability to separate caste and social status/class, whether it was proportionate to introduce it (taking into account the low numbers of caste discrimination cases) and the controversy that the introduction of ‘caste’ into legislation may create.
Following the Government’s response and decision to rely upon emerging case-law, it is relevant to note the most important case to date on caste is Chandhok v Tirkey. In Chandhok, the Employment Appeal Tribunal held that caste may be protected under the Equality Act provided that it falls under the definition of a protected characteristic, in particular under the ‘ethic origin’ heading of race. It was decided that, although caste itself is not a protected characteristic, it may be categorised as falling within ‘ethic origin’ as it can often be based upon descent or can be identified using certain ethnic criteria.
As a result of Chandhok it follows that caste discrimination may, depending on the facts of the individual case, fall under race discrimination. Whilst ‘caste’ will not be defined under the Equality Act, the recent consultation clearly shows that there is a willingness to recognise that individuals should be afforded protection in connection with their caste in certain circumstances. We now expect to see more cases in this area moving forwards, which will test the extent of the protection available.
This bulletin is for general guidance purposes only and should not be used for any other purpose.