Government reforms (2): Discrimination – consultation on caste

What do we already know?

We updated you in our May 2013 Newsletter (Government reforms finalised) and our January 2015 Newsletter (Case update (3): Discrimination – protects caste?) that the Enterprise and Regulatory Reform Act amended the Equality Act 2010 to prohibit discrimination on grounds of caste.  The target date was Summer 2015 and the Government announced that there would be a public consultation on the prospective legislation.

What’s new?

The Government is now going ahead with the consultation in respect of caste discrimination.  The consultation, which ends on 17 July, presents two options:

• prohibit caste discrimination through case law; or
• specify caste as a protected characteristic in the Equality Act 2010.

Although the case of Chandhok v Tirkey (Case update (3): Discrimination – protects caste?) found that in principle the concept of race discrimination could include discrimination because of caste, it recognised that this would not always be the case.

However, even in light of this, the Government appears to favour prohibiting caste discrimination through case law as it believes that, post Chandhok, it is likely that anyone who believes that they have been discriminated against because of caste could bring a race discrimination claim.  Whereas, the downside of specifying caste in the Act itself would be the need to disapply certain provisions which might prove problematic (such as positive action and the public sector equality duty) and, more generally, the danger of creating or entrenching notions of caste consciousness.