5 February 2015
In the House of Lords this Monday (February 2), Lord Averbury asked the government “what is the timetable for implementing the legislation to incorporate caste as a protected characteristic under the Equality Act 2010”…
Liberal Democrat Baroness Garden of Frognal replied that the Government have “no immediate plans to incorporate caste into legislation”.
She continued; “We are aware of the recent Tirkey v Chandok Employment Appeal Tribunal judgment and are considering its implications for discrimination law. The judgment opens the possibility of a legal remedy for claims of caste-associated discrimination under existing legislation, in the ethnic origins element of Section 9 of the Equality Act 2010. We note this potential protection and have always stated that we completely oppose caste discrimination.”
The ruling in the Tirkey v Chandok case supported the view that caste discrimination should fall within the definition of “race” in the Equality Act.
However it was pointed out by Lord Averbury that the judge had expressed that his ruling “is not binding on all future cases of caste discrimination”, and therefor further legislation is needed.
Tirkey was employed as a domestic servant by the Chandok family for four years, and brought a number of cases against her employer including unfair dismissal, unpaid wages and holiday pay, religion and belief discrimination and race discrimination. She wished to add a caste discrimination claim to the race discrimination claim, which the employer applied to strike out on the basis that the employment tribunal had no jurisdiction to consider it.
The judge dismissed the application and accepted the race claim as amended. He found that the definition of race, including ethnic origin as descent, encompassed caste. This was appealed, and taken to an Employment Appeal Tribunal, where the judge affirmed the trial judge’s decision.
The ECHR prohibits discrimination “on any grounds such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”. The judge ruled that this definition was wide enough to include “caste”.
In other words, the tribunal elected to expand the protected characteristics under the act to include caste, despite the fact the Government has not yet elected to make caste itself a protected characteristic. This is despite the fact that in March 2013 the Lords voted 225 for and 153 against to extend the 2010 Equalities Act to include caste.
At the time Labour’s equalities spokesman in the Lords, Lady Thornton, who is co-sponsor of the amendment, said: “Studies confirm the caste system exists in the UK, with over 850,000 people affected – and the associated lack of caste mobility is inconsistent with moves to encourage a more cohesive society”.
The Government’s delay in implementing the change has come under criticism from several peers. Lord Deben said; “this House specifically refused to support the Government’s position and refused to accept the delay. We voted for a change in the law. We are now two years later and that change has not been implemented.”
The Baroness replied that “Because of a number of delays, there is no longer sufficient time before the election to put it through”. According to the Sunday Times, senior Whitehall sources claim that the delay is due to David Cameron directly blocking the proposal. The article states that he has been accused of “bowing to a powerful “vested interest” and wealthy Hindu businessmen who oppose the move.
Keith Porteous Wood, Executive Director of the National Secular Society said: “The Government has been directed to introduce anti-discrimination legislation on caste by Parliament and the UN. For it to defy both suggests conflict with a strong vested interest.”
He added: “This would be consistent with a letter we have been shown from a Government Minister written in February 2012, which argues that it should not only be the ‘victim communities’ ‘most susceptible to being victims of any caste discrimination or harassment’ that should be consulted, but the ‘the wider Hindu and Sikh communities’ too. Is that not like saying that sexists or misogynists should be allowed to veto sex equality legislation?
The IER publication on the 2010 Equality Act by Aileen McColgan elaborates on the issue of caste as a subcategory of race. Read it here.