Employment Law Advocates

A couple was reported to have brought the first ever case of caste discrimination in the UK to the Birmingham Employment Tribunal last week. Well, this cannot quite be correct because caste discrimination is not expressly covered by UK employment law. Rather, the Equality Act gives the Secretary of State the power to introduce regulations to outlaw caste discrimination. The current Secretary of State, Theresa May, is considering a newly commissioned report on the issue.

In the meantime, the Birmingham claimants will have to try to bring their claim under one of the existing heads of discrimination. One possibility is religious belief which, as the report highlights, often overlaps considerably with caste membership. A more intriguing possibility would be to bring it under the race discrimination provisions, as discrimination on the grounds of descent. This is because caste membership is inherited from parents and cannot be changed.

The question then arises as to whether discrimination on the grounds of descent falls under race discrimination. Historically, ethnic groups have been defined in partly cultural terms, so that members of an ethnic group were expected to have a shared culture, which would be distinct from the culture of other ethnic groups. This definition comes from the judgment of the House of Lords in Mandla v Lee. However, the more recent decision of the Supreme Court in JFS changed all that. In JFS, it was held to be unlawful to discriminate against a boy because of his mother’s ancestry, even though all parties shared the same Jewish culture. Indeed, it does appear as if the case did introduce a law against discrimination based on descent, which may well cover most instances of caste discrimination.

There is a lesson to be drawn from all this. JFS was criticised in some quarters and, even among supporters like me, there was a sense in which it seemed to be quite a harsh decision. There was little justification for the admissions policy of the school but, on the other hand, it was no more arbitrary than the practices of many other educational establishments. However, looking at the big picture, it becomes clear how important it was to maintain the principle that discrimination is wrong. Had an exception been made, that same exception would probably now be being relied upon as a way of importing the caste system into UK law.