There are currently nine protected characteristics; sex, gender reassignment, being married or in a civil partnership, being pregnant or on maternity leave, race, disability, sexual orientation, religion or belief and age.
The definition of ‘race’ is non-exhaustive. The Equality Act 2010 states that race ‘includes…colour; nationality, ethnic or national origin‘ (emphasis added). It is therefore possible to argue that factors other than colour, nationality, ethnic origin and national origin are also covered by the legislation if they fall within the umbrella of ‘race’. However, the provisions of the Act relating to race do not expressly prohibit discrimination against a person because of their caste.
Change is now looming and we are set to see the introduction of a tenth protected characteristic (that of caste) in 2015.
What is a person’s caste?
The definition of ‘caste’ has caused much debate; it can mean different things to different groups. However, the explanatory notes to the Equality Act 2010 state:
The term ‘caste’ denotes a hereditary, endogamous (marrying within the group) community associated with a traditional occupation and ranked accordingly on a perceived scale of ritual purity. It is generally (but not exclusively) associated with South Asia, particularly India, and its diaspora’.
Why do we need the legislation?
When the Equality Act 2010 was first introduced, the Government decided not to expand the wording of the legislation to cover caste. The decision appeared to be based on the reasoning that there was no real evidence of caste discrimination in British workplaces. However, it did commit to keep the position under review and to consider the results of research on the topic.
In October 2013, the European Parliament debated and then adopted a resolution on caste discrimination calling on the Commission to ‘…recognise caste as a distinct form of discrimination rooted in the social and/or religious context which must be tackled…’. This signified a strong political desire to act on the issue.
A power to make caste an aspect of race discrimination within the UK was implemented in June 2013. However, the Government committed to undertake a widespread public consultation before the detail of any new legislation was implemented. The consultation is due to take place in Autumn 2014.
So, is it currently possible to discriminate against a person because of their caste under the current law?
Unfortunately the position is currently unclear; employment tribunals appear to be approaching the issue differently. In one recent case*, the Employment Judge concluded that the Equality Act can and should be construed in such a way so as to provide that caste discrimination is to be part of the protected characteristic of race. Other tribunals though have concluded that as no order has yet been made explicitly extending the Act to include caste as an aspect of race this is not, as yet, a legally protected characteristic.
What does all of this mean for employers?
The likely introduction, in 2015, of legislation pertaining to caste will mean that your equality and diversity policy (and other affected policies) will need updating to reflect the new law. Ultimately however, and particularly in light of the Employment Judge’s views in the above case*, caste discrimination is arguably relevant now and should consequently be incorporated into your training, policies and workplace mind-set in the same way as the other aspects of race discrimination.
This blog post was edited by Merran Sewell. For more information, email firstname.lastname@example.org.
*Tirkey v Chandok