In March 2017, the UK Government launched a public consultation entitled Caste in Great Britain and Equality Law to collect public opinion on how best to ensure appropriate and proportionate legal protection against caste discrimination.

The consultation closed on 18 September 2017 and, following independent analysis by selected third party NHL Partnership Limited, the response was published earlier this month. The paper reveals the Government has backtracked from the original plan to introduce express statutory protection and has opted to rely on evolving case law to protect society from caste discrimination.

What is 'caste'?

The term 'caste' is used to identify a number of different concepts, including varna (a Hindu religious caste system), jati (an occupational caste system) and biraderi (a clan system). Caste awareness in Britain is intense amongst people with roots in the Indian subcontinent (who comprise 5% of the population) and it is not religion specific. Public opinion around the UK varies extensively with regards to the existence and nature of caste discrimination and harassment: Some believe it exists and is highly destructive, others think is limited to personal social relations (e.g. marriage), and some believe it does not exist at all.

What current legal protection is there?

In the UK, discrimination against certain characteristics (such as race, age, sex etc.) is founded in the Equality Act 2010 (EqA).  Whilst colour, nationality and ethnicity are safeguarded by virtue of s.9(1) of the EqA under the protected characteristic of race, caste discrimination is not explicitly covered. However, in 2013, Parliament amended the EqA at s.9(5)(a) to impose a duty on the Government to amend the EqA to ensure caste is classed as an aspect of race for the purposes of discriminatory and harassment protection. Therefore, the gateway for statutory protection of caste discrimination was created. 

Following this amendment, in 2014, the Employment Appeal Tribunal (EAT) issued a judgment in the case of Tirkey v Chandhok concerning discrimination arising from the claimants' origins. In considering protection offered under the EqA, it became apparent that, in reality, many of the components considered to identify one’s ‘caste’ were equally capable of being measured as part of a person's ethnic origins (which is already part of the existing race provisions under s.9(1)(c) of the EqA). Therefore, someone claiming caste discrimination may rely on the existing statutory remedy of race discrimination where they can show their ‘caste’ is linked to their ethnic origin. 

The aim of the consultation: two potential options 

With a view to complying with s.9(5)(a) of the EqA, the Government launched the public consultation to gain an insight into how best to safeguard against caste discrimination and harassment. The Government identified two options to offer this protection:

1. Insert wording into the EqA  to afford the concept of ‘caste’ express legal protection under the protected characteristic of race; or 
2. Invite Parliament to revoke the duty under s.9(5)(a) and, instead, rely on evolving case law whereby caste discrimination is afforded via existing provisions in the EqA. 

Whilst identifying the best route of protection, the Government also wished to gain an insight as to what types of caste discrimination would not be covered by the concept of ethnic origin in case law under existing equality provisions. 

A third option arising from the consultation responses

Following two roundtable meetings and various discussions between Government officials and devolved administrations, the 16,000 consultation responses were given to a third party, NLH Partnerships Ltd, for independent analysis.

The responses received were varied, and whilst the primary objective focused on the two options of protection, one fifth of responses rejected both options, expressing the view that the need to offer protection for caste discrimination was completely unnecessary and some even called for case law to be ‘repealed’. Whilst, strictly speaking, case law cannot be repealed, these opinions were effectively a request for the Government to introduce legislation that would impede the possibility of caste being a legal concept in domestic law completely, with no statutory or common law protection. This would be a rather obscure approach to discrimination legislation which tends to take an inclusive approach as opposed to an exclusive one.  Although the Government was keen to consider the entirety of opinion, they have made it clear in their response that this was not a viable option as, fundamentally, anyone who suffers unlawful discrimination should never be deprived of protection or recompense.

The prevailing opinion was to employ the powers of the courts to engage protection against caste discrimination by relying on evolving case law (53% of respondents were in favour of relying on case-law, whilst only 18% were in favour of legislative protection). 

Flexibility v Certainty 

The reliance on case law is preferred as many people believe the flexibility afforded by common law developments will allow the multi-faceted concept to be refined over time, deeming tribunal and courts the best forums to deal with the subtleties of the ‘caste’ concept. Although the fluidity of the concept was largely seen to be a positive, some also saw this elasticity as a disadvantage with there being no guarantee of sturdy protection. 

Many of those who chose the legislative route based their reasoning on the lack of clarity in the definition of ‘caste’; they felt reassured by the resolute legal certainty that comes with statutory protection. The consultation responses acknowledged that statutory protection would prevent ambiguity and avoid reliance on the courts interpreting the relationship between caste and ethnic origins. However, discontent was expressed by the Government in their analysis of this approach.  In light of the concerns around the definition of caste, by including the word in legislative drafting interpretation issues would arise due to the term being a somewhat undefined, blurry legal concept. 

Common law prevails

Following the EAT judgment in Tirkey, and in light of the consultation responses, the Government has concluded that protection from caste discrimination can be obtained via the protected characteristic of race. The Government will move to find a suitable legislative instrument to revoke the duty under s.9(5)(a) as soon as possible.

To ensure continued scrutiny, the Government intends to monitor caste discrimination cases with a view to ensure that higher courts follow the position of the EAT in Tirkey. If this common law protection is ever under threat, the Government will consider intervening to uphold the existing interpretation of caste to maintain the interplay between caste and ethnic origins to ensure such discrimination is recognised as unlawful. Additionally, in time, guidance will be produced to outline caste-related rights and identify any unlawful conduct under the EqA. This should reassure anyone who feels they have suffered discrimination or harassment on the grounds of caste and also assist in raising the profile of this characteristic among employers, service providers and public authorities.

Article written by Kathleen Gallacher, trainee soilictor at Addleshaw Goddard.