Legal opinion: Is it time to clarify the law on caste discrimination?

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Does protection from caste discrimination exist under the Equality Act 2010? A recent claim has shed an interesting light on how discrimination is interpreted under the existing law.

The claim, brought by Mr and Mrs Begraj against the law firm that employed them both, is the first to cite caste discrimination in a UK employment tribunal and has been described as “ludicrous” by the respondent law firm Heer Manak. The couple, who are of Indian descent, are members of different castes and claim that they were treated unfavourably by their employer for entering into an inter-caste marriage.

Mr Begraj is a member of the Dalit caste, also known as “untouchables”, while Mrs Begraj is a member of the higher Jat caste. Mrs Begraj, a former solicitor at the firm, claimed that she was actively discouraged by her employers from marrying Mr Begraj and believes she was treated differently as a result. Mr Begraj was ultimately fired and Mrs Begraj resigned shortly afterwards. Heer Manak maintains that the claim is just a smokescreen to cover the failings of the individual claimants.

The existing legislation

The issue arising from this case is whether or not or not prohibition of caste discrimination exists within the wording of the existing legislation. Caste discrimination is not expressly covered by the Act but the Government clearly envisaged such a scenario arising and expressly gave itself the power to add caste to the definition of race if required. Despite reports recommending that the Government amend the Act to include caste, it has so far not done so. Therefore, the tribunal will need to decide how widely it can interpret the existing law.

The issue for the tribunal is where, if anywhere, does caste fit within the existing definitions of discrimination. It is too simplistic to classify caste alongside religious belief or as an extension of ethnic background. Traditional caste membership is much deeper, including social, political and class standing.

Can the Equality Act be interpreted to cover caste?

Interpreting the Act to include caste discrimination under the protected characteristic of race, through ethnic or national background, is more likely than under religious belief, as caste involves common characteristics that are inherited and cannot be changed. The danger is that widely interpreting racial discrimination within the context of ethnic or national background will stretch the boundary of the Act beyond what was intended. The tribunal needs to decide whether or not, by widely interpreting the law, it is potentially opening a can of worms that will lead to more claims based on characteristics that go further than ethnic and national background.

The overriding consideration of the Government in implementing the Equality Act is to prevent discrimination. Logic dictates that if an obvious case of discrimination exists based on a person’s caste, the legislation should be interpreted as having been intended to include caste. This is the position of the Equality and Human Rights Commission, which argued against including an express prohibition of caste discrimination in the Equality Act on the grounds that protection was already provided under the existing provisions. However, the fact that caste was deliberately excluded from the definition of race in the first publication of the Act suggests that the Government is still unsure whether or not caste discrimination should be covered under current legislation.

Or should the Act be amended?

Is legislation needed to plug this potential gap? If caste discrimination is inserted into the Equality Act, it potentially opens up a grey area as to what constitutes caste and whether or not social status in a wider sense would also be caught. The case is scheduled to resume in March 2012, by which time the Government may have reached a decision to include caste in the express definition of race. However, any such amendment will not apply retrospectively, so in this matter, the tribunal must decide whether or not caste discrimination is covered by the existing law. Despite the possibility that it may be interpreted as discrimination based on ethnic background, the possible wider implication of this suggests that this was not the Government’s original intention.

Simon Fenton, partner, Thomas Eggar LLP








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