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Tom Pimenta
Tom Pimenta,
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Government decide against writing “caste” into the Equality Act 2010
14 August 2018

The government has responded to a recent consultation on how to handle caste discrimination in the UK. The report looked into whether “caste” should be added to the protected characteristics under the Equality Act 2010 or if, instead, they could just rely on evolving case law.

What is caste?

Caste is used to define perceived social classes within some communities.

Currently, the Equality Act 2010 includes race as a protected characteristic. Race covers: colour, nationality, ethnic or national origin but does not extend to caste. This has made it difficult to place complaints of caste discrimination (often as the parties involved will be of a similar background other than their caste).

The Enterprise and Regulatory Reform Act 2013 required the government to amend the Equality Act to include caste as an aspect of race. However, in July 2013, the government Equalities Office decided that they should have a consultation on this before writing this change into the Equality Act to explore its effect.

What did the consultation paper seek?

In March 2017, the government published their consultation paper that sought views on which route would be best to protect against caste discrimination. The two main options explored were:

  1. Allowing the tribunal to develop key tests on caste discrimination through case law; or
  2. Specifically banning caste discrimination by making it a protected characteristic within the Equality Act 2010.

What was the outcome?

Of the 16,000 responses received since: just over half chose to rely on case law, only 2,885 believed that the Equality Act 2010 needed to be amended and 3,588 rejected both options entirely. This suggested that caste discrimination was not a major issue for those who responded to the consultation. The government, therefore, chose to rely on case law and felt that this would be a more proportionate response considering the low number of cases.

In particular, the Employment Appeal Tribunal in a recent case (Chandhok and another v Tirkey [2015]) held that caste discrimination could be covered by the protected characteristic of race under the “ethnic origin” element. This case did not set a “definitive decision in principle” that caste would always be covered but it did demonstrate how ethnic origin can be extended to include caste.

Conclusion

One of the key criticisms from those who responded to the consultation was that having a specific protection for caste would, in reality, mean that the protections are for social class between individuals rather than something linked to their racial background. It was feared that this could lead to greater divisions within communities at the expense of social cohesion between people of a different social status.

The government felt that allowing case law to define what this meant would enable judges to decide on a case by case basis whether the reason for any less favourable treatment was race as opposed to someone’s class.

Critics have argued that this creates uncertainty for claimants, who will have to prove that their case falls under the ethnic origin aspect rather than social status as well as that the discriminatory acts actually took place. This is likely to result in lengthier hearings and higher legal fees for claimants.

However, due to the low numbers of cases received on this point, it was deemed more proportionate to let case law define how this area will develop rather than for the government to prescribe what should be protected.

If you would like to discuss any issues relating to discrimination, please contact Tom Pimenta on 0118 952 7284 or email [email protected]

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