Employment Wrongs · Equality Act 2010 · Race Discrimination

No action on Caste Discrimination

A couple of weeks ago I posted a comment on Race and Caste Discrimination in reference to the Employment Appeal Tribunal decision in Chandhok & Anor v Tirkey [2014] UKEAT 0190_14_1912.

A couple of days later the issue was raised in the House of Lords (with thanks to Law and Religion for highlighting this:

Lord Avebury: To ask Her Majesty’s Government what is the timetable for implementing the legislation to incorporate caste as a protected characteristic under the Equality Act 2010.

Baroness Garden of Frognal (LD): My Lords, we have no immediate plans to incorporate caste into legislation. 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.

Lord Avebury (LD): My Lords, can my noble friend give an undertaking on behalf of the Government that, if they are re-elected in May, they will pursue this matter to completion, as recommended by the UN Committee on the Elimination of Racial Discrimination? As regards the tribunal case of Tirkey that she mentioned, have the Government considered the opinion of the EHRC that it is not binding on all future cases of caste discrimination and that an express provision in the Equality Act, which has already been decided by Parliament, is necessary for reasons of legal clarity?

Baroness Garden of Frognal: My Lords, I cannot make promises on behalf of a future Government not yet elected, but post-election, of course, the incoming Administration will need to consider how to discharge their legal obligations in respect of the outstanding duty to legislate. On my noble friend’s second question, we of course take note of what the EHRC says, but I should make it clear to the House that this view was expressed by the commission in its submission on the Tirkey case and not part of the judicial decision.

Baroness Thornton (Lab): My Lords, it is almost two years since this House voted by a very large majority that caste should be considered for inclusion in the Equality Act 2010. As the noble Lord, Lord Avebury, has said, the recent employment tribunal judgment reinforces the point that caste discrimination is an issue coming before the courts and that clarity of the law is required. This issue cannot be ignored or sidelined, so what exactly is the Government’s timetable for taking this forward after this terrible delay?

Baroness Garden of Frognal: My Lords, we are conscious of the delay in this matter. During the passage of the Enterprise and Regulatory Reform Act 2013, when the need for explicit caste legislation was debated extensively, it was generally acknowledged that a full public consultation should be undertaken, not least because there was no general consensus on even basic concepts, such as a workable definition of caste itself. Because of a number of delays, there is no longer sufficient time before the election to put it through.

Lord Deben (Con): My Lords, my noble friend will remember that in those debates 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 Government owe it to this House to say that they will implement it, and that any future Government made up of the two parties of this Government will also implement it.

Baroness Garden of Frognal: My Lords, I recognise the frustration around the Chamber over this matter. However, the debates during the final stages of the then Enterprise and Regulatory Reform Bill made clear that caste is a controversial and difficult issue, and that the Government would need to proceed carefully, involving public consultation. I believe that the Tirkey v Chandok case, which was unknown at the time those debates took place but which has potentially significant implications for the law in respect of caste and race discrimination, clearly illustrates the need for caution.

Lord Harries of Pentregarth (CB): Does the Minister agree that it would be quite inadequate to leave issues of racial and gender equality to employment tribunals? What is different about caste discrimination, when the judge in the Tirkey v Chandok case said that his judgment applied only to the facts of that particular case, and did not make any ruling about caste in general?

Baroness Garden of Frognal: Indeed, my Lords, but the Employment Appeal Tribunal is an authoritative court and, for the time being at least, its judgment in that case is the law of the land. The EHRC intervened in the appeal and I imagine would wish to consider another intervention, if it thought that was necessary.

Lord Cashman (Lab): My Lords, all discrimination is difficult to deal with, but such procrastination is entirely unacceptable when more than 200 million people experience caste discrimination every single day. Therefore, will the Minister please report back the strength of feeling in this House that the procrastination is entirely unacceptable?

Baroness Garden of Frognal: I will, indeed, report back the frustration of this House but I come back to one of the difficulties, which is that there is no agreed definition of caste. Many cases which are in the pipeline could be brought under the ethnic origins discrimination legislation.

To translate that into plain language: we’ve said we would do something, had a lot of time to to something, but decided not to do anything after all.

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