UPDATE: The UK Government’s Caste Consultation closed on 18 September 2018. We are continuing to campaign alongside other UK based organisations and will announce further developments in due course. Thank you to everyone who completed and shared this consultation.

Caste in Great Britain & Equality Law Consultation

We urgently need you to complete the Government questionnaire

Human rights campaigners, academics, Dalit community organisations and individuals affected by caste discrimination (Caste in the UK), all agree that the most effective way to outlaw caste-based discrimination is to add caste to the Equality Act 2010. They have prepared this guidance to ensure everyone understands this point. Respond to each question in the Government consultation questionnaire in your own words using the guidance below.




Act now – Consultation period ends on 18 September 2017

Don’t have time?
Please ensure you at least complete the 4 mandatory questions as follows:

 

Steps to completing the Government consultation questionnaire

2. What is your email address? (Text)

The advantage of entering your email is that you can come back to complete your questionnaire at a later point using a link sent to your inbox after you hit ‘Save and come back later’.

3. What is your organisation? (Text)

Leave blank if responding as an individual, this is completely acceptable.

4. Would you like us to keep your responses confidential? (Yes/No)

You can ask to keep your responses confidential and give no reasons.
4. “Yes.”

4a. Reason for confidentiality. (Text)

4a. “I do not have to share my reasons.”

5. Protection against discrimination on grounds of ethnic origin to be developed through case law (Select option)

Select: “Strongly Disagree”

6. Please explain the reasons to answer 5 (Max 100 own words)

“There is no guarantee that case law will develop in the desired direction, or at all, to fully protect individuals who are affected by caste discrimination. I believe that caste-based discrimination should be explicitly added to the Equality Act, as this is much more effective at guarding against caste-based discrimination, instead of leaving protection to an uncertain future through any development of case law. Caste must be clearly added to the legislation to ensure everyone is aware that caste-based discrimination is wrong.”

7. Which types of caste discrimination, if any, do you think would not be covered by the concept of ethnic origin in case law? Please clearly list the features of caste which you think are not covered by ethnic origins and explain why you think this. (Max 100 own words)

“Dalits (identity spanning different castes), and other castes have multiple and varying ethnic identities including different languages, religions and cultures. Discrimination occurs within and between ethnic groups and religions. Lawyers’ understanding of ‘ethnic origins’ is not necessarily the same as what non-lawyers mean and understand by it. For example in UK equality law Sikhs are considered an ethnic group but Muslims, Christians, Jains and Hindus are not. It’s therefore better to simply insert caste into the Equality Act rather than relying on judicial interpretation of the ethnic origins sub-category and on case law to extend the Equality Act to caste.”

8. What are the benefits (e.g. social and economic) of using case-law to implement a legal ban on caste discrimination? (Max 100 own words)

“We know of none.”

9. What are the disadvantages (e.g. social and economic) of using case-law to implement a legal ban on caste discrimination? (Max 100 own words)

“There is no guarantee that case law will develop to recognise that caste is covered by existing law and that discrimination on the grounds of caste is unlawful. This uncertainty makes bringing a claim expensive, stressful and uncertain. These burdens are likely to be reduced if caste is simply inserted into the Equality Act 2010.”

10. What are the benefits (e.g. social & economic) of inserting caste into the Equality Act 2010 as a specific aspect of race? (Max 100 own words)

“Inserting caste into the Equality Act 2010 will inform people of the existence of caste-based discrimination and clearly state that it is wrong. It will helpfully highlight caste as a distinct type of identity or status across different religions, classes, and ethnic groups. It will act as a deterrent and enable more efficient handling of those cases that do reach courts and tribunals. I believe adding caste into the Equality Act will help reduce caste-based discrimination.”

11. What are disadvantages (e.g. social and economic) of inserting caste into the Equality Act 2010 as a specific aspect of race? (Max 100 own words)

“We know of none. It will not hinder culture, tradition, religious rituals or caste associations because of exceptions that apply to the Equality Act. It will not interfere with religious freedom which is protected by the Human Rights Act.”

12. A) To what extent do you agree or disagree that the PUBLIC SECTOR EQUALITY DUTY provisions should apply to caste: (Select option)

“Strongly Agree”

12. B) To what extent do you agree or disagree that the POSITIVE ACTION provisions should apply to caste: (Select option)

“Strongly Disagree”

13. Explain your answers to Q12 A and B. [Number error on Gov. Form] A- Public Sector Equality Duty (PSED):

“Th PSED is a useful method to enhance equality as long as it does not require monitoring or auditing of caste identity. I believe the PSED is applied in the case of other protected characteristics where no monitoring is done, so it should be possible to do the same with caste.”

13. Explain your answers to Q12 B. [Number error on Gov. Form] B- Positive Action:

“Positive Action may require monitoring of caste identity, which nobody wants. Therefore, I disagree with applying it to caste”.

14. A) Data on costs and benefits to individuals of caste becoming an aspect of race in the Equality Act through a) A Specific change in the legislation (Text)

“If I was discriminated against because of caste I would feel more protected if caste was mentioned in the Equality Act 2010. That is clearly a benefit to me. I have no data on costs. It is more straightforward (therefore cheaper) to bring a claim of caste discrimination if caste is included as a ground of discrimination in the Equality Act.”

14. B) Data on costs and benefits to individuals of caste becoming an aspect of race in the Equality Act through b) Through reliance on case-law following the judgment in Tirkey v Chandhok (Text)

“From what I have learnt, the costs to individuals bringing complaints to a court is very high. If the case drags on, they may run out of money! The Begrajs’ were an example. In Tirkey v Chandok, Ms Tirkey got help from an NGO, but no one can be sure there will be an NGO or charity ready to help out. I can only see costs in this route, no benefit to sufferers of discrimination.”

15. What else can the Government do to prevent caste discrimination? (Max 100 own words)

“The UK Government must provide protection for all individuals facing all forms of discrimination and human rights abuses. At a minimum, it should ensure that caste is added to the Equality Act 2010. In doing so, greater confidence in the legal system would be instilled amongst the 4.5 million South Asians living in the UK and amongst other communities where caste discrimination may occur.
Once caste is inserted into the Equality Act the UK Government should produce information on caste-based discrimination and share this widely across society, including employers, to help educate, identify it and prevent it from occurring.”

16. Which is your preferred option to tackle caste discrimination? (Select option)

✓ Option 2 – ‘Using the duty to insert caste into the Equality Act 2010 as an aspect of race’ ✓

17. Why do you think this? Please explain your reasons (Max 100 own words)

“Those affected by caste-based discrimination, human rights campaigners and academics agree that the most effective method we have for outlawing caste discrimination, within the confines of this consultation, is to add caste into the Equality Act 2010 as a specific aspect of race. Caste-based discrimination is similar to other forms of discrimination covered by the Equality Act and so should be identified in it. Putting caste into legislation enables all sections of society to be aware that caste-based discrimination exists and is wrong. With the use of the PSED it would help prevent caste-based discrimination in the UK from occurring.”

Don’t forget to click “Submit Response” on the last page. Adding your email address is optional.

Contact us
Background
FAQs
More resources
Contact us

All material in this Call to Action has been produced by seven leading UK organisations and leading academics involved in securing legal protection against caste-based discrimination. Visit the Caste in the UK website here or email Caste in the UK here.

Or contact SASG via twitter here or email us here.

Background

Why you need to complete this Government questionnaire

Caste-based discrimination does exist here in the UK acknowledged by both Parliament and the Government. It should be outlawed. The Government consultation gives you the opportunity to send a clear message that it should be against the law to discriminate against people because of their caste.

The National Institute of Economic and Social Research (NIESR) published a study[1] in 2010 indicating that there is evidence of caste-based discrimination and harassment in the UK. This was followed by a further substantial government-funded research by the Equality and Human Rights Commission (EHRC)[2], which also established the undeniable presence of caste-based discrimination in the UK and evidenced the public demand to outlaw it. At the international level, the UN Committee for the Elimination of Racial Discrimination has recognised caste-based discrimination as a form of racial discrimination and has called for the immediate implementation of legislation to outlaw caste discrimination in the UK in 2011 and again in 2016.

Caste and caste law in the UK

There are estimated to be nearly 4.5 million South Asians[3] and other communities living in the UK and many of them belong to a caste or have a caste identity attributed to them. For many people, caste is a form of association and group belonging which is very positive.  For others, however, there are negative consequences of being associated with a particular caste and they face discrimination and harassment because of it.

In 2010 Parliament gave the Government permission to outlaw caste discrimination in the Equality Act 2010 by making caste an aspect of race, but it has not done so. In 2013, the Enterprise and Regulatory Reform Act 2013 converted the permission to include caste in the Equality Act 2010 into a ‘duty’[4] to do so. However, to date the Government has not complied with this ‘duty’ imposed by Parliament. Consequently, the Equality Act 2010 still does not expressly prohibit discrimination on grounds of caste.

Despite the ‘duty’, evidence-based studies supporting legislation prohibiting caste discrimination, and calls to outlaw caste discrimination at the international level, the UK Government has succumbed to misleading lobbying. Some oppose such legislation on the erroneous basis that caste-based discrimination does not exist in this country or that it is declining and will disappear. This misleading campaigning has led the UK Government to delay and backtrack on years of work to implement the legislation against caste-based discrimination. It is therefore vital that you make the right choice of adding caste to the Equality Act 2010 in responding to this consultation before 18 September 2017.

[1] http://www.niesr.ac.uk/sites/default/files/publications/caste-discrimination.pdf

[2] https://www.equalityhumanrights.com/sites/default/files/research-report-91-caste-in-britain-socio-legal-review.pdf and https://www.equalityhumanrights.com/sites/default/files/research-report-92-caste-in-britain-experts-seminar-and-stakeholders-workshop.pdf

[3] 2011 census: 4,232,661 South Asians living in England, Wales, and Northern Ireland. 2001 census: 71,317 South Asians living in the Scotland.

[4] The ‘Duty’ is discussed further in section 1.7 to 1.9 on page 7: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/609641/170419_-_Caste_condoc_-_Final.pdf

FAQs

The FAQs and answers are assembled by a group of concerned organisations and academics committed to removing caste related discrimination in the UK.

  1. What is Caste?

In the recent report Caste in Britain: Experts’ Seminar and Stakeholders’ Workshop[1], commissioned by the Equality and Human Rights Commission (EHRC), caste in Britain is described as having both positive and negative features. “In the UK, caste is positively a form of association and social capital among communities of South Asian origin, but negatively a form of social separation, distinction and ranking, that excludes certain groups historically regarded as “untouchable”. Caste involves endogamy (marriage within the group) and inherited status, and as a form of social identification is distinct from class, race, and various forms of ethnicity.”

  1. What is Caste Discrimination? How do we know it is a problem in Britain?

It is discrimination against someone because of their actual or perceived caste identity and/or caste status. Caste discrimination takes many forms in Britain. Research by academics and community organisations in support of those who suffer discrimination shows that services may be denied, rental accommodation withheld and complaints of harassment in the workplace and educational institutions remain unaddressed.

We know that it is a problem because in 2010 the Government commissioned independent research into Caste Discrimination in the UK by the National Institute for Economic and Social Research (NIESR). They found strong evidence of caste-based discrimination in the areas covered by the Equality Act 2010. (See Caste discrimination and harassment in Great Britain). On 28 February 2014, the EHRC published two independent research reports from the project Caste in Britain confirming the undeniable existence of caste discrimination in the UK in areas covered by the Equality Act 2010.

  1. What is ‘Case law’? When and how does case law create legal precedent?

Case law is one of the three principal sources of law in the UK. The other sources are legislation or statutes (Acts of Parliament), and European Union law. Case law refers to the legal principles and rules made and developed by judges in cases that they hear (rather than rules created by Parliament via legislation). Case law is also known as common law or judge-made law.

Precedent: the system whereby a statement of law, or a principle or rule used by the judge or judges to decide a case and which was the reason for their decision, must be followed in all later cases involving similar facts or issues. Judgments in the lowest courts do not establish binding precedents. Lower courts must follow precedent (i.e. apply the legal principles) established by the higher courts in previous cases: this is the “system of precedent”. Decisions of the Supreme Court (the highest court in the land) establish precedents that must be followed by lower courts in all future cases involving similar facts or issues, and can only be overruled by the Supreme Court itself. It is also important to note that legislation can be passed which trumps judicial precedent.

  1. Does case law provide sufficient protection for sufferers of caste discrimination?

Case law does not provide sufficient protection for sufferers of caste-based discrimination in the UK because at present it provides no guarantee that courts will always interpret the Equality Act as extending to caste. Referring to the case of Tirkey v Chandhok, the Government itself acknowledges in paras 3.6 to 3.9 of the public consultation that: “[The Tirkey v. Chandhok] judgment was not a definitive assessment of whether caste is or is not within the scope of the Equality Act” and “the Employment Appeal Tribunal recognises that some cases where caste is a reason for less favourable treatment may fall outside the current scope of protection of the Equality Act”. Also paras 3.11 and 3.12: “Any claim would need to show that discrimination had been because of the claimant’s descent (and thus their ethnic origins). … A claim of poor treatment because of caste might fail if a court found it was not related to descent.” The Employment Appeal Tribunal judgment in Chandhok v Tirkey does not provide a sufficiently secure precedent. No claimant has yet succeeded in a claim for discrimination specifically on grounds of caste under the Equality Act 2010.

  1. If caste discrimination is a problem to be addressed in the U.K., why are there not more legal cases?

The most important factor is that caste-based discrimination is not expressly prohibited in UK law and therefore also unlikely to be addressed through other mechanisms, such as workplace grievance procedures, contributing to the impression that there is no legal basis for a complaint about it.

Sufferers may be reluctant to lodge complaints due to fear of revealing previously hidden identities, or due to likely reprisals and community pressure against raising the “caste issue”. Another fundamental factor is the cost of bringing a discrimination claim. In the absence of clear and explicit mention of caste, more time is taken in establishing it as a ground of discrimination in the initial stages of a claim.

  1. Why do some people disagree with adding caste to the Equality Act 2010?

There is ignorance about the experience of victims of caste-based discrimination, no doubt because dominant groups are not generally mindful of their dominance. It is when one is victimised and one shares that experience with other victims of discrimination that the truth of group-based discrimination strikes one. The denial of discrimination is difficult to sustain when face-to-face with claimants reporting their personal experience of caste-based discrimination. There is confusion and misguided fear about monitoring caste. The inclusion of caste in the Equality Act 2010 would not require declaration of caste, if one does not want to disclose it. (Also see answer to FAQs 7, 8, 9, 19 and 20)

  1. What aspects of life does the legislation cover?

The Equality Act 2010 protects you from discrimination “by employers; businesses and organisations which provide goods or services like banks, shops and utility companies; health and care providers like hospitals and care homes; someone you rent or buy a property from like housing associations and estate agents; schools, colleges and other education providers; transport services like buses, trains and taxis; public bodies like government departments and local authorities.”

  1. If caste is explicitly mentioned in the Equality Act 2010, would it mean that I must disclose my caste when I seek a job, or rent accommodation, or provide services?

No. There would be no need to disclose caste. Those lobbying against the inclusion of caste in the Equality Act 2010 have been misleading on this point. Just as, for example, in the case of age, sexual orientation, religion and belief, maternity and pregnancy, amongst areas covered by the Equality Act 2010, disclosure is voluntary, so too in the case of caste, disclosure would not be a legal obligation when seeking a job, renting accommodation or providing services.

  1. If caste is explicitly mentioned in the Equality Act 2010, would the Public Sector Equality Duty in the Act require declaration of caste?

The application of the Public Sector Equality Duty (PSED) is sometimes offered as an example of where monitoring of caste may be needed. But this is not necessary. For example, such monitoring is not done in the area of maternity and pregnancy, even though they are covered by the PSED. The PSED requires public authorities to “have due regard to the need to eliminate discrimination, harassment, and victimisation; to advance equality of opportunity between people sharing a relevant protected characteristic (e.g. race) and those who do not; and to foster good relations between persons sharing a relevant protected characteristic and those who do not”. There is no obligation to monitor people’s characteristics in order to do this. For example, under the PSED public bodies are obliged to create an ethos of good relations and safe environment for pregnant women without having to do a survey of who is or is not pregnant. The same norm can be followed for caste. Public bodies would be obliged to create an environment in which no one is discriminated against because of their caste, without expecting a declaration of caste. The PSED does not require that we should find out who belongs to which caste.

  1. In the context of the legislation, what is ‘Positive action’?

A ‘Positive action’ is a measure an employer is permitted (but not required) to use in order to respond to particular needs of disadvantaged and under-represented groups in the workplace. This is different from positive discrimination or quotas which are prohibited by the Equality Act 2010 (section 158).

An employer is permitted to favour a candidate (out of two equally qualified candidates) with a protected characteristic when deciding whom to recruit or promote, with the aim of encouraging disadvantaged and under-represented groups in the workforce (section 159 of the EA 2010).

  1. I am not of South Asian origin, so why should the legislation on caste concern me?

You may be an employer, service provider or a teacher and have interaction or responsibility for people of South Asian origin. You may either witness caste-based discrimination or have to deal with a case of this form of discrimination.  You may be concerned about social justice, equality of opportunity, and the elimination of all forms of discrimination, therefore, the legislation is relevant to you.

  1. I am of South Asian origin, why is it good for me that caste be explicitly mentioned in the Equality Act 2010?

If you are discriminated against because of your caste in the workplace, in your access to public services, or at school or further education, you should be entitled to the same level of legal protection against caste-based discrimination by a perpetrator no matter what their caste.

You may either witness caste-based discrimination or have to deal with a case of this form of discrimination.  You may be concerned about social justice, equality of opportunity, and the elimination of all forms of discrimination, therefore, the legislation must matter to you.

  1. I am an employer; what does addition of caste to the Equality Act 2010 mean for me? For example: will I have to keep a record of the caste of my employees?

If you are an employer, you are responsible for preventing discriminatory practices in any workplace under your control. You may also want to provide comprehensive internal policies and procedures for employees to use in case of grievance or disciplinary action. The Equality Act 2010 provides a legal framework for employers to do this effectively.  You may, therefore, agree that it should recognise all characteristics on the basis of which people may face discrimination or abuse. You will not need to keep a record of your employees’ caste. All you will need is to be aware of the Equality Act 2010 and that you may on occasion have to deal with a case of caste-related discrimination at some point, if you have a workforce which includes people who identify with caste identities and/or caste status.

  1. I am Vice Chancellor of a university (Principal of a college/school): does addition of caste to the Equality Act 2010 mean that I have to follow Positive Action with respect to caste?

On the question of the application of s159 of the Equality Act 2010 (positive action), it is common knowledge that the opinion of both sides, supporters and opponents of the addition of caste to the Equality Act 2010, is to disagree with the use of positive action. Therefore, if the government legal drafters follow the mandate of the public consultation, which is a political decision in the end, there should be no requirement to follow positive action with respect to caste.

  1. I am an employee: do I have to declare my ‘caste’ to the HR department/employer?

No. There will be no requirement to declare your caste. It is only if you find yourself subjected to caste-based discrimination and report this to your HR department that you may need to mention the perceived caste status or identity which you believe is the reason why you have been subjected to discriminatory behaviour.

  1. I am a student; do I have to declare my ‘caste’?

No. There will be no requirement to declare your caste. It is only if you find yourself subjected to caste-based discrimination and report this (to your school or college or university authorities) that you may need to mention the perceived caste status or identity which you believe is the reason why you have been subjected to discriminatory behaviour.

  1. I am a finance manager; will Public Sector Equality Duty with respect to caste mean that there will be additional costs for meeting the requirement?

There is no legal requirement to set aside a specific budget, any more than there is for “equal opportunities” training on race, gender etc. There will be some costs, e.g. for preparing training materials and including a paragraph on caste discrimination.

  1. What does having an Exception to Equality Act 2010 mean?

An “exception” means that in particular contexts even though discrimination occurs, it is allowed, and therefore, not illegal. The Equality Act 2010 has some exceptions which allow employers or organisations, in certain circumstances, to discriminate i.e. where a difference in treatment may be lawful. For example, a religious organisation can sometimes restrict employment to one sex if the role is for religious purposes; a religion or belief organisation can ask people to sign up to a statement of beliefs in order to become a member; a charity might be able to restrict its activities or its benefits to people with a particular protected characteristic e.g. women, people with a visual impairment. Exceptions applicable to the inclusion of caste in the EA 2010 are described in detail in the EHRC Report 91.

  1. What is a ‘genuine occupational requirement’ (GOR)?

A “genuine occupational requirement” means that it may be lawful in limited circumstances to treat people differently when recruiting for certain jobs where the duties of the particular job require it.

  1. Why are separate Exceptions or GORs suggested for caste, when it is supposed to be an aspect of race?

Separate Exceptions or GORs could be used to avoid making certain types of caste-based discriminations unlawful. For example, exceptions and occupational requirements could be used when religious practices of a group require that certain rituals be performed by a person or persons of a status/identity in common understanding associated with a caste group. These are matters to be considered when the Equality Act 2010 is amended by adding caste. Disagreement about the exact scope or interpretation of any new exceptions and occupational requirements would be a matter for the courts and/or Parliament to resolve. If you have areas in mind that you believe should be exempt from application of Equality Act 2010, include these in your response to the consultation.

  1. Will adding caste to the Equality Act 2010 criminalise activities using caste (for example, organising caste associations)?

No. The Equality Act 2010 is civil legislation, not criminal legislation. It does not criminalise any activities. It makes certain types of discriminatory behaviour unlawful leading to the possibility of a claim for compensation by the victim, but it does not make any behaviour criminal and it does not impose criminal sanctions.

  1. We are members of a faith-based (religious) organisation; what would be the impact of adding caste to the Equality Act 2010 on our activities?

None. If caste is inserted into the Equality Act 2010 as an aspect of race, the following exception, which already exists, in the government guidance on the Equality Act will apply: “An association whose main purpose is to bring together people who share a particular characteristic may restrict membership and invitations as a guest to such people.” Therefore, you should be able to carry on unhindered with your culture and traditions. Religious rituals of Hindu, Sikh, Jain, Buddhist, Christian, Muslim or any other religious organisation, for example, forms of worship, choice of religious texts, and choice of food shared should not be affected by the inclusion of caste in the EA 2010, because they would be covered by the exception. The aim of the legislation is not to interfere with religious freedom, protected by the Human Rights Act.

[1] https://www.equalityhumanrights.com/sites/default/files/research-report-92-caste-in-britain-experts-seminar-and-stakeholders-workshop.pdf

More resources

Links to films, published research and news articles on caste in the UK

Film: India’s caste victimisation in the UK

Film: Caste Based Discrimination in the UK

Caste discrimination and harassment in Great Britain (2010)
by Hilary Metcalf and Heather Rolfe

The Government commissioned National Institute for Economic and Social Research (NIESR), an independent research body to investigate Caste Discrimination in the UK. The report found strong evidence of caste-based discrimination in the areas to be covered by the Equality Act 2010.
Download Caste discrimination and harassment in Great Britain

Caste in Great Britain (2014)
by Meena Dhanda, Annapurna Waughray, David Keane, David Mosse, Roger Green and Stephen Whittle

On 28 February 2014, the Equality and Human Rights Commission published two independent research reports from the project Caste in Britain confirming the undeniable existence of caste discrimination in the U.K. in areas covered by the Equality Act 2010.
Download Caste in Britain: Socio-Legal Review
Download Caste in Britain: Experts’ Seminar and Stakeholders’ Workshop

Stories of caste based discrimination in the UK media

Why hasn’t the government banned caste discrimination in the UK?
Vice.com on January 6, 2017

Arguments over caste spread from India to Britain
The Economist November 1, 2015

Caste divide is blighting Indian communities in UK, claims report
The Guardian July 4, 2006

Why are UK Hindus against caste law?
BBC Asian Network, 18 January 2017