Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - United Kingdom of Great Britain and Northern Ireland (Ratification: 1999)

The Committee notes the observations of the Trades Union Congress (TUC) received on 30 August 2021 and communicated to the Government. The Committee also takes note of the Government’s reply.

Article 1(1)(a) of the Convention. Protection against discrimination based on social origin and political opinion. Law and practice. In its previous comments, the Committee noted that the Equality Act 2010 did not specifically refer to the grounds of social origin and political opinion. It requested the Government to provide concrete examples of how cases alleging discrimination based on social origin and “caste” are dealt with by courts and tribunals, and information on the number of cases of discrimination based on political opinion and on the measures taken to protect workers against such form of discrimination.

Discrimination based on social origin. With regard to the protection against discrimination based on membership of a “caste”, the Government, in its report, states that it is aware of only three cases brought before the courts that involved considerations of caste and its relation to social origin. In Naveed v. Aslam (2012), the Employment Tribunal declared that the complaint was not well-founded as the “incidents were entirely unrelated to the claimant’s caste (or indeed to any other racially tainted characteristic)”. In Begraj v. Manak (2014), the case was not concluded after the judge in charge of the Employment Appeal Tribunal recused herself. In Tirkey v. Chandhok (2014), the Employment Appeal Tribunal found in favour of the claimant’s contention that she was discriminated against because of her low status including by reason of her caste. While the judge accepted that “caste” was not explicitly part of the Equality Act 2010, he also stated that many of the identifying features of a person’s descent which determined their caste related to their “ethnic origins” and this is explicitly protected under the Equality Act. The claimant was awarded compensation of £180,000. In the Government’s view, this judgment means that it is likely that anyone who believes that they have been discriminated against because of caste could now bring a race discrimination claim under the existing ethnic origin limb of the race provisions of the Equality Act 2010 because of their descent. The Government considers therefore that the best way to provide the necessary protection against unlawful discrimination because of caste is by relying on emerging case-law as developed by courts and tribunals. Consequently, section 9(5) of the Equality Act 2010 providing that a Minister of the Crown: (1) must by order amend this section so as to provide for caste to be an aspect of race, and (2) may by order amend this Act so as to provide for an exception to a provision of this Act to apply, or not to apply, to caste or to apply, or not to apply, to race in specified circumstances, will be repealed. In this regard, the Committee takes note of the observations of the TUC on the employment situation of working-class workers. The TUC emphasizes that people from working class backgrounds still earn less than those from middle class backgrounds, even when they have the same qualifications and do the same type of job. Even when those from working-class backgrounds attend university, they still enter the job market earning less than those from middle-class and private-school backgrounds. The TUC’s analysis of data provided by the Higher Education Statistics Agency (HESA) shows that graduates with parents in “professional and routine” jobs are more than twice as likely as working-class graduates to start on a high salary, no matter what degree level they attain. The Government refers in its response to the National Living Wage and the National Minimum Wage that it states provide essential protection for the lowest paid workers.

While taking note of the information provided by the Government on the case law regarding discrimination based on “caste”, the Committee recalls that discrimination and lack of equal opportunities based on social origin refers to situations in which an individual’s membership of a class, socio-occupational category or caste determine his or her occupational future (see 2012 General Survey on the fundamental Conventions, paragraph 802). The Committee notes that there has been only one successful case of discrimination connected to “caste”, which may indicate that the absence of explicit mention of it in the Equality Act demonstrates a lack of awareness of its protection under the Act. The Committee notes with regret the fact that the Government is proposing to repeal section 9(5)(a) of the Equality Act 2010.

Further, the notion of “social origin” is broader in scope than the notion of “caste” referenced in the case law reported by the Government. The Committee takes note of the Government’s response to the TUC’s comments that it does not propose to introduce the socio-economic duty under Part 1 of the Equality Act 2010 for England or in respect of Great-Britain wide bodies, and notes with regret that the Government does not propose to add a new characteristic to the Equality Act 2010 addressing social origin.

Discrimination based on political opinion. With regard to cases relating to discrimination based on political opinion, the Government indicates that there are no central records on the number of cases brought domestically, broken down by protected characteristic. It is open to people to contest that their political beliefs are so strong that they can be captured by the religion or belief provisions within the Equality Act 2010, and domestic courts have been open to considering such cases on their individual merits. Discrimination on the basis of political opinion is therefore protected against. Furthermore, the Committee notes that while the Equality Act 2010 covers “philosophical belief”, it does not appear to cover “political opinion”. The Committee notes that protection for political opinion implies protection in respect of the activities of expressing or demonstrating opposition to established political principles and opinions, and covers discrimination based on political affiliation. The notion of “belief” explained by the Government is narrower than the concept of political opinion enshrined in the Convention (see 2012 General Survey, paragraph 805).The Committee also recalls that where legal provisions are adopted to give effect to the principle of the Convention, they should include at least all the grounds of discrimination specified in Article 1(1)(a) of the Convention (see 2012 General Survey, paragraph 853). The Committee requests the Government to take steps to ensure that at least all the prohibited grounds of discrimination specified in Article 1(1)(a) are included in the legislation and that, in the meantime, workers are protected in practice against discrimination based on their social origin and political opinion. It further asks for detailed information on the measures adopted to address discrimination faced by workers from working-class backgrounds reported by the TUC, as well as on any cases relating to claims of discrimination based on social origin or political opinion, including the facts of those cases (such as the scope and particulars of discrimination based on social origin, at least in terms of salaries and opportunities for advancement) and the remedies provided.

Discrimination based on religion. The Committee previously requested the Government to continue to provide information on the measures taken or envisaged to address discrimination and stereotyped attitudes concerning religion, including on the impact of these measures on access to employment and education for the Muslim community. The Committee takes note of the indication that the Government engages with Muslim communities through a number of faith and integration projects. These projects are often geographically targeted to address problems faced by the communities where there can be high degrees of segregation and often seek to address issues of disadvantage or exclusion that create barriers to integration and employability. Noting this information, the Committee requests the Government to provide data on the impact of the measures taken on access to employment and education for the Muslim community, as well as any other activities undertaken specifically in the field of discrimination in employment and occupation.

Northern Ireland. The Committee has been asking the Government to take steps to abolish the exclusion of teachers from protection against discrimination on the ground of religious belief in Northern Ireland (section 71(1) of the Fair Employment and Treatment (NI) Order, 1998). The Committee notes with regret that the Government’s report does not contain any information in this regard. The Committee once again requests the Government to take steps to repeal the exclusion of teachers from protection against discrimination on the ground of religious belief in Northern Ireland provided in section 71(1) of the Fair Employment and Treatment (NI) Order, 1998.

The Committee is raising other matters in a request addressed directly to the Government.