This article was first published in Solicitors Journal February 2011.
Last year saw one of the most significant changes to the employment law landscape in the form of the new Equality Act 2010 (the Act). Amongst its many provisions is a new power for the Government in section 9(5)(a) to provide for "caste" to be an aspect of race. This would offer protection against caste discrimination and harassment in relation to work, education and goods and services.
The National Institute of Economic and Social Research (NIESR) was commissioned to undertake research to help inform the Government whether to exercise this power. NIESR published its study in December 2010 and has confirmed that caste discrimination and harassment does exist in Great Britain.
NIESR uses as its starting point the definition of caste provided in the Explanatory Notes to the Act. The study notes that the term "caste" is used to identify a number of different concepts: varna (a Hindu religious caste system), jati (an "occupational caste system") and biraderi (sometimes referred to as a clan system). The examples of caste discrimination identified in the study related to jati.
NIESR found that caste awareness in Great Britain is concentrated amongst people with roots in the Indian sub-continent and the study focuses on this group. It is not religion specific and is subscribed to by members of any or no religion. The study was unable to identify evidence on the extent of caste discrimination and estimates of the size of the low caste population in Great Britan vary between 50,000 and 200,000 or more.
Following a review of literature on caste discrimination, discussions with interested parties (e.g. the Anti Caste Discrimination Alliance and CasteWatchUK) and interviews with victims of caste discrimination, NIESR found evidence suggesting that lower castes had been subject to discrimination or harassment in Great Britain.
Examples were identified across many areas of work, spanning bullying and harassment, social exclusion, recruitment, promotion, task allocation and dismissal. The study contains case studies illustrating such treatment, perpetrated by managers and supervisors, colleagues and subordinates.
Caste discrimination and harassment was also found in relation to the provision of services and education (pupil on pupil bullying). The study also identified evidence of caste discrimination or harassment falling outside the scope of the Act (e.g. voluntary work, demeaning behaviour and violence).
The study notes that anti- and pro-caste legislation organisations express opposing views about the trend in caste awareness and its influence. The former consider caste to be dying out in this country (if not already dead) and that legislation in this area is therefore unnecessary; the latter believe that caste discrimination remains, and will remain, strong.
There is no hard evidence either way. Whilst some believe that caste awareness is confined to older generations, other factors counteract this (e.g. new migration from the Indian sub-continent and apparent growth of caste-pride amongst the young).
The study suggests that anti-discrimination legislation would encourage employers, educators and providers of goods and services to develop non-discrimination and anti-harassment policies and provide access to redress.
It does acknowledge that because some religions are almost wholly low caste, some cases of caste discrimination and harassment may be covered by the Act's religious discrimination provisions. However, these are likely to be less effective than caste-specific provisions and may not provide protection for members of a mixed-caste religion or atheists.
The study also refers to taking an educative approach, noting that either the educative or legislative approach would be useful in the public sector. Non-legislative approaches are less likely to be effective in the private sector and do not assist those where the authorities themselves are discriminating.
Whilst NIESR has identified material evidence of caste discrimination and harassment in Great Britain, it also acknowledges that only a major programme of research could establish the extent of caste discrimination and whether it is dying out.
Baroness Verma recently confirmed that the Government has "not ruled out legislative responses", stating that "we need to ensure that our response is reasonable and proportionate". It therefore remains to be seen whether the efforts of those who have campaigned for caste discrimination legislation in Great Britain, together with the NIESR study, will be enough to persuade the Government to exercise its power.
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