The Equality Act 2010 prohibits discrimination on grounds of sex, race, disability, religion or belief, sexual orientation, gender reassignment, pregnancy/maternity, marriage and civil partnership, and age.
During the consultation period, there was a view put forward that this list of “protected characteristics” should also include discrimination on the grounds of caste; a ranking according to a perceived scale of ritual purity generally associated with countries in South Asia and particularly India. The Government rejected this suggestion on the basis that there was little evidence of such discrimination in the UK in the fields covered by the Equality Act – employment, vocational training, education and the provision of goods, facilities and services, and insofar as there was anecdotal evidence of caste discrimination in choices such as whom to marry, it was considered that this was not an appropriate matter for protection under discrimination law.
However, the Government then suddenly accepted an amendment by a Liberal Democrat peer to include a power to make caste discrimination an aspect of race discrimination. The Government made a commitment to keep the decision about whether to activate this power under review. It therefore commissioned the National Institute of Economic and Social Research (NIESR) to produce a report on the extent to which caste discrimination was a real problem. That report, entitled ‘Caste discrimination and harassment in Great Britain’, was published in December 2010 and concluded that the Equality Act’s current provisions dealing with race and religion or belief were not as effective in tackling such discrimination as specific caste-discrimination protections would be.
In the specific context of work, the authors of the Report found evidence of cases of bullying, menial task allocation, exclusion from work, social events and networks, and humiliating behaviour based on perceptions of relative superiority and inferiority taking place. Such behaviour was evidenced in a case where women from ‘upper’ castes refused to take water from the same tap as that used by ‘lower’ caste colleagues. Despite this, the Government did not at that stage decide to outlaw caste discrimination.
That did not, however, stop Mr and Mrs Begraj from commencing an employment tribunal claim based on caste discrimination against their former employers, Heer Manek Solicitors.
Mr Begraj was a practice manager at the firm; his wife was a solicitor. She belonged to a higher caste than him, the same caste as their employers. They alleged that they had suffered caste-based discrimination, humiliation, victimisation and harassment as a result of their relationship. The tribunal heard evidence for 36 days but unfortunately the case collapsed in February 2013 when the tribunal judge recused herself after the police provided her with information about the Respondent employers in the wake of allegations by the General Secretary of Castewatch UK that his windows were smashed just two days after giving evidence on behalf of Mr and Mrs Begraj. They are currently considering whether to appeal that decision, and it is unclear whether they will pursue a re-hearing of their case.
The case was being watched closely to see whether or not a claim for caste based discrimination could succeed under the current provisions of the Equality Act or not.
There is, however, growing support for the Government to outlaw caste discrimination specifically. Earlier this month, the House of Lords voted in favour of enacting the power set out in the Equality Act. However the Government has made clear that it will oppose such a view and has instead appointed ‘Talk for a Change’, a Community Interest Company run by former Department of Communities and Local Government national specialist advisers, to engage with affected communities and run an educational programme. The Government believes this is an “appropriate and targeted” way of dealing with examples of caste discrimination which are not already susceptible to criminal law or other remedies.
In addition, the Government has agreed to the Equality and Human Rights Commission examining the nature of caste prejudice and harassment as evidenced by existing studies, and the extent to which the problem is likely to be addressed by legislative or other solutions.
The Commission will publish its findings later in 2013. The Government will retain the power in the Equality Act “in case the position should change”.
It is therefore still unclear whether the Equality Act presently prohibits discrimination on grounds of caste. It will also be interesting to see whether further research suggests this is a significant problem or not. For now, employers should be careful to ensure that its employees are not treated less favourably on grounds of caste.
Safia Tharoo, Barrister, 42 Bedford Row, London