The Equality Act 2010 creates a potential new ground of legal action for discrimination on grounds of ‘caste’. Section 9(5) of the Equality Act provides the power to make a statutory instrument for caste to be “an aspect of race”. This will allow legal claims for damages to be brought for caste discrimination. The process for bringing the legislation into effect has started. This note provides an introduction to the caste provision and outlines its anticipated effects, mainly for Asian businesses and employers. It has been drafted on behalf of the Coalition for Dialogue (CfD), a group which believes that legislation is not the answer to solving problems and advocates the use of dialogue instead.
1. The provision on ‘caste’ is contained in the Equality Act 2010, section 9(5), which potentially expands the ground of ‘race’ to include ‘caste’. The wording makes caste “an aspect of race”, which indicates that the coverage of the Act with respect to caste will be as wide as that applied to ‘race’, and without the wide exemptions applied to other ‘protected characteristics’, such as religion.
2. The original wording of section 9(5) of the Equality Act made it discretionary for a Minister to make an order making caste and an aspect of race. The Act was amended in April 2013 to make it mandatory for the Minister to make an order adding ‘caste’ to ‘race’. The Minister is therefore obliged to bring the provision into effect. The government is therefore currently examining how to implement the obligation with more detailed secondary legislation.
3. Those within and outside of the British parliament who advocated for the legislation have claimed that there is ample evidence of caste discrimination in the UK, which makes it necessary for such legislation to be in place. They claim that reports produced by NGOs that support Dalit causes, and officially sponsored studies in the UK by the National Institute for Economic and Social Research (NIESR) (2010) and the Equality and Human Rights Commission (EHRC) (2014), show such evidence. The EHRC has already declared itself in favour of the necessity of the caste discrimination provision. Recent programmes on BBC radio stations suggest that the campaign to have the legislation brought into effect is picking up. These include the Nihal radio programme, on the BBC’s Asian Network, broadcast on 27 September 2014, which suggested that organisers of Navratri events are in potential breach of the law.
4. The Equality Act allows for civil legal actions to be brought by claiming an act of discrimination, whether it is ‘direct’ or ‘indirect’ discrimination, victimisation or harassment. Civil actions can arise alleging the occurrence of any act of discrimination in the UK, no matter what the nationality of origin or the location of the head office of a business. An action for caste discrimination could therefore be directed to an Indian company doing business, hiring employees, or having a branch office in the UK. Such civil legal actions can include claims for compensation, including for injury to feelings, aggravated damages for malicious behaviour, and interest on any compensation. In an employment case, an Employment Tribunal can also recommend that the employer take action to correct the situation or limit the damage done to the claimant. The EHRC also has legal powers to conduct investigations of any organization and these could be extended to cover caste discrimination. Investigations are just one method by which the EHRC enforces the legislation. Other methods include inquiries, assessments, issuing unlawful act notices, and compliance notices. South Asian businesses could face specific investigations or other intrusive actions on grounds that caste discrimination is suspected to occur within those businesses. It is unlikely that similar investigations would be made of businesses run by members of cultural communities other than the South Asian.
5. The civil legal actions allowed under the Equality Act 2010 do not require permission of any official body. Anyone can potentially make a claim of caste discrimination without having to go through, say, the Crown Prosecution Service, which approves the vast majority of criminal cases after assessing whether there is a public interest for bringing a prosecution. In the case of caste discrimination claims, there will be no such test of public interest, and no external body to assess in advance the wisdom of bringing a case or the chances of its success.
6. The Equality Act 2010 covers areas such as employment, partnerships, entry to a profession, provision of goods and services, housing, education, bodies conferring qualifications, trade unions, professional or trade organisations, exercise of public functions, local authorities, etc. Employment cases are litigated in employment tribunals; others may be tried in a county court (sheriff court in Scotland) or a forum specific to a field such as the military, immigration, or special needs education. No legal aid is available for bringing or defending a claim. A claimant may however be assisted financially or otherwise by a law centre, the EHRC, or any other body that has an interest in the matter. Law firms may represent claimants on a no-win-no-fee basis, while this is unlikely to be available to those defending against a claim.
7. The model chosen for caste discrimination claims in the Equality Act makes the UK a unique example of using its civil law anti-discrimination legislation for targeting caste discrimination. An individual instance will presumably be sufficient to found a claim under the Equality Act; no pattern of practice need be shown. The Indian case is quite a different model because it is focused on preferential quotas (reservations) for groups, which are specifically listed in legislation. The Indian legislation is not an invitation for an open-ended set of litigation claims as the UK legislation is. There is no tested model of the kind the UK is due to implement, and the Indian case law will not help establish guidance for when an act constitutes an act of ‘caste discrimination’. UK lawyers and judges will effectively be going alone into an area which they scarcely understand, and where the social science literature and expertise is confused. As our critique shows, confusion on the subject of caste can be seen clearly in the reports of the academic investigation commissioned by the EHRC. Pakistan and Bangladesh, the second and third largest South Asian countries, have no specific legislation on caste. India also has criminal laws on caste atrocities, while Nepal passed a law in 2011 focused on criminal punishments, the Caste-based Discrimination and Untouchability (Offence and Punishment) Act, 2068.
8. Many solicitors firms in the UK specialise in damages claims with no up-front fees (i.e. no-win-no-fee basis) and they advertise widely in the Asian media. Any number of spurious claims could result in the UK as a result of the caste discrimination provision, especially when it is known that damages claims can be made.
9. Employers, businesses and professionals would have to check whether their insurance policies cover claims for caste discrimination. They may have to ensure that they are updated so that legal costs of defending claims, including any damages, can be paid. Even if the defence of a case and payment of damages is covered by an insurer, it may be subject to a ‘reasonable prospects of success’ test. This could mean that an insurer is not willing to pay for defence or damages costs arising. Ministry of Justice advice recommends before-the-event and after-the-event insurance protection. While the latter protects the claimants against defendants’ costs, in practice, the defendant may end up paying for the costs of that insurance too. There may also be issues about insurers paying for the choice of solicitors, while solicitors will not have the necessary expertise to defend a claim of caste discrimination. Especially given that the caste provision is so new and not yet in force, it is anticipated that few if any lawyers have the necessary expertise to defend a legal claim. Solicitors may have an incentive to settle a claim rather than defend it fully, still leaving a defendant employer, business, professional, or other service provider liable for damages and a reduced chance for vindication.
10. The burden of proof initially lies with whoever is alleging the discrimination, but the adducing of facts by a claimant can lead to the reversal of such a burden to the defendant, employer, business, professional, or other service provider. This means that the defendant must adequately defend the claim by showing that it is not proper to draw an inference of discrimination, or else judgment can be entered against them. Given the civil law context, a low standard of proof will apply. A claim can succeed if, on a balance of probabilities, it can be shown the caste discrimination was present. This is unlike criminal law where a beyond-reasonable-doubt standard applies for guilt or innocence. The possible reversal of burden of proof and the low standard of proof might mean that a claim of caste discrimination against a defendant employer, business, professional, or other service provider is much more likely to succeed. This may mean insurers not willing to back the costs of defending a claim and could result in legal advice to settle a case, again depriving the employer a chance to be vindicated.
11. The caste provision exposes South Asian employers, business, professionals, or other service providers and those South Asians who work within an organisation to charges of and litigation concerning caste discrimination. The legislation therefore sets up one particular group as potential discriminators, not the generality of the population. It could be argued that the Act’s application to caste is therefore discriminatory and that it violates the Human Rights Act 1998 (and in turn the European Convention of Human Rights, ECHR) and the Convention on the Elimination of Racial Discrimination (CERD) for singling out one group for exposure to legal action.
12. In the case of an organisation that employs South Asians, there could be disincentives to employ on grounds that the organisation would be exposed to claims of caste discrimination by fellow employees or by customers or service receivers. In case of caste discrimination allegations, there could also be incentives upon employers to mount disciplinary actions against their South Asian employees even though caste discrimination is a hardly understood phenomenon. This in turn adds to existing discriminatory patterns against Asians in employment or hiring situations. While it has rightly been argued that members of an organisation close ranks against ethnic minority claimants of discrimination, it can be envisaged that mere allegations of caste discrimination will expose the accused South Asian employees to further penalties within the workforce.
13. No definition of caste was provided during or since the passing of the legislation, although various allusions were made in and outside parliament to what caste was considered to be. It should be noted, however, that the Explanatory Notes to section 9 of the Equality Act are suggestive of a definition as follows:
The term “caste” denotes a hereditary, endogamous (marrying within the group) community associated with a traditional occupation and ranked accordingly on a perceived scale of ritual purity. It is generally (but not exclusively) associated with South Asia, particularly India, and its diaspora. It can encompass the four classes (varnas) of Hindu tradition (the Brahmin, Kshatriya, Vaishya and Shudra communities); the thousands of regional Hindu, Sikh, Christian, Muslim or other religious groups known as jatis; and groups amongst South Asian Muslims called biradaris. Some jatis regarded as below the varna hierarchy (once termed “untouchable”) are known as Dalit.
The legislation therefore has within its sights concepts such as varna, jati and biraderi as being indicative of caste groups. The legislation does not therefore find it problematic to map the European idea of caste onto different kinds of South Asian cultural ideas, although the history of such mapping indicates a multitude of problems. The legislation specifically refers to South Asia and, within that region, India is the only country mentioned. Muslims and Christians are also mentioned. While not all of the legislative preferences on caste are extended to members of these two groups in India, it is notable that they are mentioned as potential beneficiaries of protection in UK law, thus laying the groundwork to argue for their wider recognition in India too.
14. The EHRC commissioned investigation produced two reports in 2014 (Caste in Britain: Socio-legal Review (Research Report 91) and Caste in Britain: Experts’ Seminar and Stakeholder’s Workshop (Research Report 92)). As our response has argued, neither report spells out coherently what caste is. In fact, the report writers make a virtue out of imprecision, which cannot be acceptable for legislation imposing liabilities, extra costs, penalties and uncertainties on businesses, employers as well as employees. Any Minister who wants to give effect to the provision may find that there is no coherent basis upon which to do so, but may yet leave the matter to judges, given that the legislation imposes a duty on the Minister to bring the caste provision into effect. This would not be a solution because judges too will be exposed to the same problem. As noted (para. 7 above), the fact that there is no case law on caste discrimination anywhere in the world is only one of the hurdles that British judges face.
15. Despite what the explanatory notes state (see para. 13 above), the EHRC reports show that there is lack of clarity about what ideas expressed in South Asian languages the English word ‘caste’ picks out. Our position remains that there can be no coherence to the idea of caste or caste system. The term ‘caste’ comes from European culture and Indian/South Asian cultural phenomena have been mapped onto ideas about European social structures in such a way that it could only distort such phenomena. This is confirmed by the results of a conference organised in April 2014. A new study commissioned by the Government Equalities Office (currently underway) is also seeking to find out from respondents what terms the word ‘caste’ equates to and how respondents may be asked questions about their caste without creating offence. This is a further indication that legislators and the government had no clarity as to what they were legislating about. However, this could still mean that the legislation will come into effect, and South Asian employers and businesses, and those organisations with South Asian employees, will therefore be at particular risk of exposure to litigation.
16. The connection of ‘caste’ to ‘race’ is one that continues to be lobbied for hard within UN organs including the World Conference Against Racism of 2001 in South Africa, when the Indian government successfully defeated a proposal to make caste an aspect of race. The UK legislation, however, goes on to achieve the same. The writers of the EHRC reports (see para. 14) also suggest that minimal exemptions should be put in place for caste discrimination unlike those that exist, say, for religious organisations and religion-based employers, which are extensively allowed to make distinctions and preferences on grounds of religion. The report writers justify the narrow application of any exemptions for caste by stating that race discrimination has limited exemptions and that, since caste is made “an aspect of race”, any exemptions for caste should also be very limited. This would have the effect of exposing South Asians to the widest possible scope the legislation could have and a commensurately increased likelihood of litigation.
17. Our assessment is that judges will be all too ready on the basis of alleged facts to assume that caste discrimination is made out. In addition to the problems surrounding the burden and standard of proof (para. 10), there is a presumption in European culture at large that Indians discriminate on grounds of caste. It is one of the strongest stereotypes of Indian culture held by Europeans. Europeans invariably bring up the caste system when they are conversing with Indians. Judges, who are also educated within the same cultural milieu, will not be immune to such stereotyping. This effectively lowers the applicable balance-of-probabilities standard of proof, and the burden of proof will be upon the South Asian employer, business, professional, other service provider or senior employee to defend themselves against what will effectively be a that caste discrimination has occurred. This exposes South Asians and their businesses to further discrimination in the operation of the law and, as noted (paras. 9-10), disadvantages them in being able to insure against caste-based claims.
18. The existing case law shows just such a tendency on the part of Employment Tribunal (ET) judges. In one recent case at ET level, a judge allowed an extension of the Equality Act to caste even though the caste provision has not been brought into effect. This underlines the willingness of judges not only to ‘see’ caste upon mere allegation, but also to accept claims to extend current legislation without the required parliamentary imprimatur, and without having the slightest understanding of the culture at issue or how legal claims can be set up. Cases of race and religious discrimination are currently conspicuous by their lack of success. They are the least likely to succeed in comparison to other Equality Act grounds. We believe the exact opposite of caste claims because of hidden presumptions and stereotypes, which will work against South Asian employers, businesses, professionals, or other service providers, as well as fellow employees.
19. An open question is whether monitoring on the basis of caste will have to be done and by whom. Monitoring of protected characteristics listed in the Equality Act is currently recommended good practice for the private sector and mandatory for public sector organisations. Additional questions are raised for caste. Would only South Asian businesses be asking the caste question of their employees or would it apply to any workplace where a significant number of employees or customers are South Asians? How should respondents decide what their caste is among the many terms related to kinship and belonging which exist in South Asian culture (see para. 20), and are employers obliged to agree about the choice an employee makes no matter how unreasonable? What costs are involved in this? As far as we know, no costs assessment has been made of this or any other aspect of implementing the caste provision. The broad impact assessment carried out on the Equality Act 2010 (2010 No. 379) makes no specific reference to the cost effects of the caste provision on business. Government Ministers admit to being reluctant to going down the route of ‘caste monitoring’, but the matter has not yet been decided one way or another. Caste monitoring could, however, be separated from ‘caste profiling’ which may yet ensue given the need for employers, businesses, professionals, or other service providers to be alert to the possibility of a claim of caste discrimination.
20. An example might help to drive home the point about how difficult it would be in practice to decide on what the relevant ‘caste’ identity should be. Could a person of Gujarati heritage who is a Halari Visa Oshwal legitimately answer to a question on ‘caste’ whether (1) he is an Oshwal, (2) whether he is a Visa Oshwal, (3) whether he is a Vania/Bania, or (4) whether he is a Vaishya? Would an alleged act of discrimination between a Visa Oshwal and a Dasa Oshwal constitute a matter coming within the legislation? Such questions would never end and the answers to such questions (in so far as they do not become absurd) have nowhere been considered. These are some of the problems the legislation exposes without providing any hint of a solution.
21. It remains an open question whether the litigant’s own caste identity only is germane to potentially experience discrimination. It is also unclear whether the identity of the defendant party would matter, i.e. whether they necessarily have to belong to a supposed ‘higher’ caste to engage in discrimination. Evidence from parts of India suggests that rich members of ‘Other Backward Castes’ category behave atrociously towards both Brahmins and Dalits. The Indian criminal legislation – The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (esp. sections 3 & 4) – assumes, however, that the perpetrators of caste ‘atrocities’ can only be those who do not belong to Scheduled Castes and Scheduled Tribes. On the one hand, it may well be, as already happens in race discrimination cases, that the identity of the alleged discriminator or complainant will not always be the deciding factor. In other words, currently, a white person can equally bring a claim of race discrimination against a member of an ethnic minority as the other way around; or a white person could bring a claim of race discrimination against another white person for, say, ‘instructing’ the former to discriminate. The same applies in sex discrimination cases whereby men could potentially bring legal actions. On the other hand, it is unclear whether one should presume that a ‘higher’ caste person cannot initiate a case against a ‘lower’ caste person for discrimination even if it is the established reason because, according to the authorities, caste discrimination is solely motivated by supposed caste rank in some alleged hierarchy of ritual purity (see para. 13).
22. The disproportionate threat of litigation against some South Asians has already been noted. A Hindu employer, or anyone else potentially exposed to legal action for caste discrimination, might well insist on knowing the caste identity of every person they deal with, record all interaction, monitor on-going relationships, and create additional structures for complaints and adjudication. There will be no scope for the kind of innocent interaction that took place so far when caste issues were not in play. There is significant potential to disrupt or make vile or poisonous employer-employee relations or relations between service providers and customers. Are all acts of unfairness or injustice, which surely occur for many reasons (like personality clashes) now to be automatically imputed to caste even if the alleged accused did not even know the caste of the plaintiff?
23. If a ‘low’ caste (e.g. Dalit) convert to Christianity or Islam feels discriminated against, will they only need to argue it is their antecedent identity that motivated any accused party’s alleged act of discrimination? This seems to be explicit purpose of the legislation, i.e. to enable Hindu converts to other faiths to bring legal action for compensation by alleging caste discrimination. If the legislation is only aimed at Hindus, though the aggrieved party presumably need not be a lower caste ‘Hindu’ at all, it would compound what amounts to an asymmetrical and discriminatory impact of the legislation on some categories of defendants over others.
24. The legislation also creates potentially damaging divisions among Hindus because they will quickly comprehend the financial motive behind legal action against members of their own caste and resent it, which may compound non-actionable discrimination in the private sphere.
25. Although South Asian businesses (one of the most successful minority business sectors in the UK) are presumed the likely discriminators under the legislation, parliament and government have nowhere assessed nor justified the extra costs incurred to such businesses and employers in having to defend legal actions based on caste grounds. Studies have not been conducted of the likely extra costs involved in defending actions against such legislation or the extra costs of insuring South Asian businesses against such claims, which could also mean a further and discriminatory extra costs burden. In other words, the legislation has been introduced without any of the usual safeguards of an impact assessment upon employers, businesses, professionals, or other service providers.
Dr. Prakash Shah
Academic Chair, Coalition for Dialogue
Reader in Culture and Law, Queen Mary, University of London