Impact of the law on caste in the UK

The Equality Act 2010 opens up businesses, business owners, and employers, public authorities, and voluntary and community organisations to claims for caste discrimination (as part of race discrimination). Although the clause on caste is not implemented by secondary legislation, that caste is already part of the Equality Act was confirmed by the Employment Appeal Tribunal in 2014 in the case of Chandhok & Anor v Tirkey (UKEAT/0190/14/KN). By expanding the meaning of race to cover caste, this case law also opens up the possibility of prosecutions under the criminal law (racially aggravated offences, incitement to racial hatred etc.). Any future passing of secondary legislation would merely reinforce what the case law already achieves.

This note outlines the risks of litigation against any of the above-mentioned bodies because of the developing law on caste. It is meant to be for guidance only and not to be construed as legal advice for any purpose whatsoever. We merely wish to draw attention to the potential risks posed by claims of caste discrimination and the criminal law. For accurate and reliable legal advice in confidence, readers are well advised to consult legal representatives directly.

One of the concerns out of which this note emerges is that none of the research conducted officially or unofficially, none of the parliamentary discussions on the law, and no judicial consideration of caste, considers the impact that the law on caste has on Indian life in the UK. It should be noted that when (or since) the legislation was passed no business impact assessment was made. This note also bears out our concerns that the law on caste will have damaging effects upon the economic, associational and religious freedoms of the Indian community in the UK.

While there is immense dispute and disagreement on all sides about what caste is or what it means in Indian cultural contexts (thus making legal intervention fraught with problems), this note does not enter into that theoretical or definitional problem. It assumes that caste groups, however defined, do constitute a living reality of Indian associational life. This does not mean that we endorse allegations that members of British Indian communities routinely discriminate on the basis of a hierarchically ordered ‘caste system’.

  1. The risks to Indian businesses
  • A family business is open to allegations of caste discrimination on grounds that an unlawful preference is being given to members of the same caste.
  • If a business does not record the caste group to which employees or customers belong, it could be held liable for caste discrimination for offending them, even if done inadvertently.
  • Not keeping records of the caste status of employers or customers could also result in a greater risk of a claim of caste discrimination against the business.
  • Because membership of a caste group survives conversion to another religion, non-Hindus – e.g. Christians or Muslims – could make claims against a business run by Hindus on grounds of discrimination because of the former’s antecedent caste. In the Tirkey case a Christian convert sued a Buddhist couple.
  • Businesses, business owners, or employees could be subject to prosecution on grounds of offences aggravated by a caste factor, which entails a higher add-on sentence to the primary crime. These could range from very basic offences such as threatening behaviour or harassment aggravated by caste.
  • Belonging to a business or professional association constituted around a caste group risks legal action for caste discrimination. Such an association also risks legal action.
  • Businesses will have to ensure that their insurance covers risks of legal claims of caste discrimination or criminal liability. This may result in a higher premium for Indian businesses because of presumptions as to which groups discriminate, harass or criminally aggravate on grounds of caste.
  • Being found liable for caste-based discrimination or caste-aggravated offence could result in a person being ineligible to be a director of a company, a trustee or to hold public or political office.
  1. The risks to public authorities
  • The Equality Act expects all public authorities to observe the public sector equality duty which includes monitoring on the protective characteristic of race. Since race now includes caste, all public authorities are bound to maintain records of the caste membership of their employees and customers. Authorities risk legal claims if these records are not maintained and monitored.
  • An authority’s equality policy will have to include caste as a factor and, in so far as caste has not been factored in, an authority could be open to a higher risk of claims for caste discrimination.
  • If an authority provides services, facilities, grants or training to a community organisation whose membership is based primarily on caste grounds it may be open to claims of caste discrimination.
  • If an authority and its managers are not aware of the caste group to which its employees or customers belong, it could be held liable for caste discrimination for offending them, even if done inadvertently.
  • Not keeping records of the caste status of an authority’s employees or customers could also result in a greater risk of a claim of caste discrimination against it.
  • Because membership of a caste group survives conversion to another religion, non-Hindus – e.g. Christians or Muslims – could make claims against an authority on grounds of discrimination because of their antecedent caste. The Tirkey case provides one such example.
  • An authority or its employees could be subject to prosecution on grounds of offences aggravated by a caste factor, which entails a higher add-on sentence to the primary crime.
  • If an authority holds, assists, facilitates, or takes part in events for the benefit of a group constituted primarily by their caste membership it could be open to claims of caste discrimination.
  • If an authority hires out premises for events such as weddings to a group constituted primarily by their caste membership, it could be open to litigation for caste discrimination.
  • If an authority convenes, holds, assists, facilitates, or takes part in events such as Navratri or a puja, where attendance is primarily for members of a caste group, it could be open to litigation for caste discrimination.
  • An authority’s insurance must cover risks of legal claims of caste discrimination or criminal liability aggravated by caste. This could result in a higher premium because of the presumptions as to which groups discriminate, harass or criminally aggravate on grounds of caste.
  • Being found liable for caste-based discrimination or a caste-aggravated offence could result in a person being ineligible to be a director of a company, a trustee or to hold public or political office.
  1. Caste-related risks to voluntary and community organisations
  • If an organisation is primarily based on caste membership (e.g. a jati or gnati belonging) it could be open to allegations of caste discrimination on grounds that an unlawful preference is given to members of one caste.
  • If an organisation holds events – as might happen during Navratri – primarily for the benefit of people because of their caste membership it could be open to claims of caste discrimination.
  • If an organisation provides preferential treatment on caste grounds for hiring premises for events such as weddings, or the costs of hiring, it could be open to litigation for caste discrimination.
  • If an organisation convenes events – as might happen during Navratri or for a puja – and invites or allows attendance primarily for members of a caste group, it could be open to litigation for caste discrimination.
  • If an organisation’s officers are not aware of the caste group to which its employees, customers or members belong, it could be held liable for caste discrimination, even for inadvertently offending them.
  • Not keeping records of the caste status of an organisation’s employees, customers or beneficiaries could also result in a greater risk of a claim of caste discrimination against an organisation, its officers or employees.
  • Because it is thought that membership of a caste group survives conversion to another religion, non-Hindus – e.g. Christians or Muslims – could make discrimination claims against an organisation because of their antecedent caste. The Tirkey case provides an example of a Christian employee suing her Buddhist employers.
  • An organisation or employees could be subject to criminal prosecution on grounds of racially aggravated offences (which entail a higher add-on sentence for the primary crime) if it were claimed that the unlawful action was aggravated by caste considerations.
  • If an organisation constitutes a business or professional association around a caste group, or assists such an association in some way, it risks legal action for caste discrimination.
  • An organisation will want to reassure itself that its insurance policy covers risks of legal claims of caste discrimination or caste-related criminal liability. This may result in a higher premium for Indian organisations because of the presumption as to which groups discriminate or offend on caste grounds.
  • Being found liable for caste-based discrimination or aggravation could result in the questioning of a person’s eligibility to be a director of a company, a trustee or holder of public or political office.
  • If an organisation is a charity, being found liable for caste-based discrimination or caste-based offence could result in the withdrawal of its charity status and therefore affect a significant part of its budget.

 

Prakash Shah, Anti Caste Legislation Committee

30 September 2016

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