Ensuring protection against caste discrimination in Britain: Should the Equality Act 2010 be extended?
| Author | Annapurna Waughray,Meena Dhanda |
| Published date | 01 June 2016 |
| Date | 01 June 2016 |
| DOI | http://doi.org/10.1177/1358229116655654 |
| Subject Matter | Articles |
Article
Ensuring protection
against caste
discrimination in Britain:
Should the Equality
Act 2010 be extended?
Annapurna Waughray
1
and Meena Dhanda
2
Abstract
Section 97 of the Enterprise and Regulatory Reform Act 2013 requires the addition of
caste to the Equality Act 2010 by secondary legislation as ‘an aspect of’ the protected
characteristic of race; but despite being mandated, no secondary legislation has been
introduced and the addition of caste remains contested by some academics, civil society
organizations and politicians who question the adequacy of any definition of caste, the
estimates of the extent of caste discrimination, and whether legal protection against
caste discrimination already exists under the Equality Act. In this article, we assess
whether legal protection against caste discrimination is now assured following the
Employment Tribunal judgement in September 2015 in Tirkey v Chandhok & Anor which
held that discrimination on grounds of caste, depending on the facts, might be capable of
falling within the scope of race as currently defined in the Equality Act. We argue that
Tirkey is significant but not decisive and that it remains incumbent on government to
extend the Equality Act to cover caste.
1
Manchester Metropolitan University, United Kingdom of Great Britain and Northern Ireland
2
University of Wolverhampton, United Kingdom of Great Britain and Northern Ireland
Corresponding authors:
Annapurna Waughray, Reader in Human Rights Law, Manchester Metropolitan University, Lower
Ormond Street, Manchester M15 6JJ, United Kingdom of Great Britain and Northern Ireland.
Email: a.waughray@mmu.ac.uk
Meena Dhanda,Reader in Philosophy and CulturalPolitics, University ofWolverhampton, Wulfruna
Street, Wolverhampton, WV1 1LY, United Kingdom of Great Britain and Northern Ireland.
Email: m.dhanda@wlv.ac.uk
International Journalof
Discrimination and theLaw
2016, Vol. 16(2-3) 177–196
ªThe Author(s) 2016
Reprints and permission:
sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/1358229116655654
jdi.sagepub.com
Keywords
Caste, caste discrimination, Equality Act 2010, discrimination, discrimination law,
equality law, race, ethnic origins, Jati, Adivasi, Tirkey v Chandhok
Introduction
In April 2010, there was mixed reaction – jubilation for some, dismay for others – at the
inclusion of section 9(5)(a) in the Equality Act 2010 (EA), an enabling provision which
provided a power for caste to be added in the future, by secondary legislation, to section
9(1) of the Act as ‘an aspect of’ the protected charac teristic of race, defined in the
legislation as including colour, nationality, and ethnic or national origins. In April
2013, section 97 of the Enterprise and Regulatory Reform Act 2013 (ERRA) converted
the ‘caste power’ in EA section 9(5)(a) into a duty, thereby requiring government to
introduce secondary legislation to add caste to race – although it gave no indication as to
how this was to be done.
1
In July 2013, the coalition government published a timetable
for the introduction of the secondary legislation which included two public consultations
on the proposed legislation, going up to and beyond the May 2015 General Election.
2
In
September 2013 the United Kingdom’s Equality and Human Rights Commission
(EHRC), at the request of government, commissioned independent research from a team
of academics (including the present authors) to help inform the introduction of the
statutory prohibition of caste discrimination pursuant to the requirement in the ERRA,
resulting in two reports Dhanda et al., 2014a, 2014b. In July 2014, with no consultation
document unveiled, the government was questioned in Parliament about the delay. The
Parliamentary Under-Secretary of State for Women and Equalities, Helen Grant,
explained that the EHRC had originally intended to commission research to establish
‘baseline data’ inter alia on the scale of caste discrimination in the United Kingdom, but
had decided that such research might be intrusive and damaging to community relations.
The government was therefore conducting a study on the feasibility of carrying out such
quantitative research;
3
but as at the time of writing, this study had not been published.
4
No secondary legislation was introduced by the then Conservative – Liberal Democratic
coalition government (2010–2015), and the Conservative government which came to
power in May 2015 has not formally announced whether it intends to introduce legis-
lation or not. In coalition, the Conservatives were opposed to extending discrimination
legislation to cover caste and proposed section 97 of the ERRA only because the gov-
ernment suffered a last-minute defeat on the inclusion of caste in the House of Lords
(Waughray, 2014).
5
At present, over five and a half years since the enactment of the EA
there is still no statutory prohibition of caste discrimination in British discrimination law,
and despite being mandated in 2013, the addition of caste in the EA remains highly
contested.
The existence of, first, a statutory power and subsequently a statutory duty to make
caste an aspect of race in the EA has raised the visibility of caste as a ground of
discrimination and has given rise on the one hand to an expectation of legal protection
against caste discrimination, on the other hand to vocal opposition to the principle of
178 International Journal of Discrimination and the Law 16(2-3)
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