Recalling its previous concluding observations (CERD/C/63/CO/11 para. 25) and its general recommendation No. 29 (2002) on descent, the Committee recommends that the Minister responsible in the State party invoke section 9(5)(a) of the Equality Act 2010 to provide for “caste to be an aspect of race” in order to provide remedies to victims of this form of discrimination. The Committee further requests the State party to inform the Committee of developments on this matter in its next periodic report. The Equality Act 2010 does not adequately protect victims of caste discrimination. While Black, Asian and Jewish members of ethnic minorities are protected from indirect and direct discrimination based on their race, caste does not form part of the definition of ‘race’ or ‘racial grounds’ in the Act. The Anti-Caste Discrimination Alliance campaigned to include caste as a protected characteristic in the Act. In response Parliament included section 9(5) which empowers a Minister to amend the Act to add caste ‘as an aspect of race’. The Coalition Government failed to implement section 9(5), arguing that the problem should be solved through education rather than law.22 After three years of government inaction, Parliament passed an amendment placing Ministers under a legal duty to implement the change.23 That duty is not being performed. On 29 July 2013, the Government announced that it would consult in early 2014 on how best to prohibit caste discrimination. They published a timetable setting out the consultation process starting in February or March 2014 and concluding with the introduction of a final draft order in Parliament during summer 2015.24 However, this promised timetable was not put into effect. A feasibility study was completed in 2014 but never published. The Equality and Human Rights Commission concluded that urgent action was needed,25 but the Government continues to refuse and the law remains uncertain.
The Government cites the Tirkey v Chandhok employment tribunal judgment handed down on 17 September 2015 as the reason for their inaction. In Tirkey, the employment tribunal ruled that a Hindu couple of Indian origin had to pay £183,773 to a low-caste Christian former domestic worker who had been underpaid and maltreated over a period of five years. The tribunal found instances of alleged discrimination which raised ‘caste considerations’ that could fall within the scope of ‘ethnic or national origins’ in Section 9(1)(c) of the Act. However, the case was decided on the ground of indirect discrimination and caste was not taken any further.26 The Government claims that the case changed the law on caste discrimination and suggests there is an existing legal remedy for claims of caste-associated discrimination under the ‘ethnic origins’ protected characteristic. Therefore the Government believes that “[a]ny continuing requirement for a consultation of this sort needs to be re-considered accordingly.”27 The Government’s assertion that the law now provides for a legal remedy for caste discrimination is misleading and incorrect. Employment tribunal cases do not create authoritative precedents – they only decide the case on the merits for the individual claimant. There is no guarantee that another individual suffering caste discrimination will achieve the same outcome in a future case. Moreover, Tirkey was not determined on grounds of race discrimination (with the ‘ethnic origins’ component incorporating caste), but on the grounds of indirect religious discrimination. It cannot be said to have created a precedent by which caste discrimination is protected in UK law.