Posted: 25/05/2022
On 27 April 2022, a preliminary list of cases was submitted by representatives for the trade unions (workers) and employers to the International Labour Organisation’s (ILO) Committee on the Application of Standards (CAS). From the preliminary list, the CAS representatives for the workers and employers will negotiate and agree a shorter list of 20 to 25 cases to be heard in June 2022 during the ILO’s annual conference. Often called an international parliament of labour, the conference establishes and adopts international labour standards and is a forum for international discussion of key social and labour questions.
UK is on the preliminary list
The UK has been included in the preliminary list of cases in connection with ILO Convention 111 (C.111). The UK ratified C.111 in 1999 (one of the two fundamental discrimination Conventions), and by so doing undertook to apply C.111 into UK law and practice and to report to the ILO on its application at regular intervals.
C111 is a fundamental Convention
C111 is one of the 8 ILO fundamental Conventions. These fundamental Conventions cover subjects that are considered to be fundamental principles and rights at work: freedom of association and the effective recognition of the right to collective bargaining; the elimination of all forms of forced or compulsory labour; the effective abolition of child labour; and the elimination of discrimination in respect of employment and occupation. As of 1 January 2019, there were 1,376 ratifications of these Conventions by national governments, representing 92 per cent of the possible total number. At that date, a further 121 ratifications were still required to meet the ILO’s objective of universal ratification of all the fundamental Conventions. For the uninitiated the fundamental Conventions are a big deal.
ILO supervision of ratified Conventions
Ratification brings with it the ability to trigger representation and complaint procedures against countries for violations of a Convention that they have ratified. This is exactly what has happened in the UK case, with the UK’s Trades Union Congress (TUC) submitting representations to the ILO’s Committee of Experts in August 2021 regarding the UK government’s compliance with its C.111 ratification obligations. This is the first time that the TUC has done this in respect of C.111. This has led to the Committee of Experts making a) an observation in their 2022 annual report to the CAS concerning the UK government’s response to the TUC representations and b) issuing a direct request for further information from the UK government in connection with its compliance with C.111.
The case is of particular interest because the Committee of Experts has asked the UK government to provide concrete examples of how cases alleging discrimination based on ‘caste’ are dealt with by UK courts and tribunals.
Equality Act 2010
The definition of ‘race’ in the UK’s Equality Act 2010 is non-exhaustive: race ‘includes... colour; nationality; ethnic or national origin’ (section 9(1)). There is, therefore, the ability to argue that factors other than colour, nationality, ethnic origin and national origin are covered. One such factor could indeed be ‘caste’.
In the course of the Commons debates on the Equality Act 2010 , the then Labour government considered the view of the Equality and Human Rights Commission (ECHR) that caste falls within the concept of race and that a specific reference to caste in the Equality Act was therefore not needed. However, an amendment was added giving the UK government the power to provide specifically that caste is an aspect of ‘race’ (section 9(5)).
This amendment was then challenged during the Parliamentary passage of the Enterprise and Regulatory Reform Act 2013 (ERRA), when the then coalition government succumbed to pressure from the House of Lords to alter the section 9(5) power to make an order on caste discrimination into a duty to do so. The duty to make caste an aspect of race discrimination came into force on 25 June 2013 (section 97, ERRA).
Current UK government position
This led to the UK government publishing a consultation paper in March 2017, seeking views on whether legislation was needed as a means of protecting against caste discrimination in all fields, including employment, education, the provision of goods, facilities and services, premises, associations and public functions. The consultation considered two options: making an order under section 9(5), or doing nothing and allowing the law on caste discrimination to develop through case law. The consultation closed on 18 September 2017. The government published its response to the consultation in July 2018, basically deciding that it would not legislate to make caste an aspect of race discrimination.
Caste case law
Given the importance of UK case law in this instance, it is worth recalling that in Tirkey v Chandok and another an employment tribunal held in 2014 that caste discrimination amounts to discrimination on grounds of descent, which constitutes direct race discrimination based on ethnic origin. The higher Employment Appeal Tribunal (EAT) subsequently upheld this tribunal's decision and decided that caste could be protected under the Equality Act 2010 to the extent that it is bound up with ethnic origin. However, the EAT expressly stated that it was not making any ‘definitive decision in principle’ that caste discrimination was covered.
What could we expect?
While the UK government is on record as saying it will not legislate to make caste an aspect of race, but rather it will keep case law developments in this area under review, if the above-mentioned C.111 case is examined by the CAS in June, then we should expect to see pressure from the CAS to ‘encourage’ the UK government to revisit its decision not to legislate in order to be in compliance with its ratification obligations. If encouragement is needed, then the Committee of Experts has upped the ante by stating in their observation: “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.”
The UK’s C.111 case is of further interest because the Committee of Experts has also asked the UK government to provide concrete examples of how cases alleging discrimination based on ‘social origin’ are dealt with by courts and tribunals. The UK government has already advised that it does not propose to introduce the socio-economic duty or add a new characteristic addressing social origin.
This could be challenging for the UK government. Article 1(1)(a)of C111 provides that for the purpose of the Convention the term discrimination includes ‘any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation’.
It is not yet known whether the UK C.111 case will be examined in the CAS, but if it is, then we can anticipate reference being made to the UK’s Human Rights Act 1998 (HRA) which imposes direct obligations on public authorities to ensure that rights under the European Convention on Human Rights are protected, but also to provide employees of private bodies with some protection. This is because courts and employment tribunals must interpret UK legislation, where possible, in a manner consistent with Convention rights. Article 14 of the Convention provides: ‘The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’
For the unaware, where national legal provisions are adopted to give effect to the principle of a Convention, they should include as a minimum all the grounds of discrimination specified in that Convention, so from the outset the UK government is on the back foot.
And if that were not enough, the ILO’s Committee of Experts has also noted that while the Equality Act 2010 covers ‘philosophical belief’, it does not appear to cover ‘political opinion’. The committee has drawn to the UK government’s attention 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 committee’s view is that ‘philosophical belief’ is narrower than the concept of political opinion enshrined in C111. Unsurprisingly, it has emphasised that where national legal provisions are adopted to give effect to the principle of the C111, they should include at least all the grounds of discrimination specified in article 1(1)(a) of C111; namely, ‘any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation’.
This issue is noteworthy because in the leading EAT case of Grainger Plc v Nicholson[1], it was held that while ‘support of a political party’ does not of itself amount to a philosophical belief, a belief in a political philosophy or doctrine, such as socialism, Marxism or free-market capitalism, might qualify.
The explanatory notes to the Equality Act 2010 and the EHRC Code do not address these points made in Grainger that political beliefs could be protected. However, it may come to haunt the UK government that in March 2010 a Government Equalities Office (GEO) spokesperson explained that the then Labour government's view was different to that of the EAT in Grainger, stating: "The government does not think that views or opinions based on scientific - or indeed on political [author's emphasis] - theories can be considered to be akin to religious beliefs or philosophical beliefs. Nor was it the intention in introducing the legislation that such beliefs should be covered."
It should certainly be expected that the TUC will want to highlight that in Redfearn v UK [2013] IRLR 51 the European Court of Human Rights (ECtHR) held that UK law must be changed in order to provide specific protection against dismissal on grounds of political opinion or affiliation. In the ECtHR's view, one way of achieving this would be to create a free-standing claim for unlawful discrimination on grounds of political belief. This is why there has been uncertainty as to the extent to which political beliefs are currently protected under the Equality Act 2010.
That said, the UK government may elect to highlight that an employment tribunal applied the Grainger guidance in Oliver v DWP ET/1701407/13 and found that a civil servant with strong ties to the Labour Party could bring a religion or belief discrimination claim. Although his mere support of the political party would not be enough to protect him, it was his political belief in ‘democratic socialism’, as enshrined by the Labour Party's core values, that qualified as a philosophical belief. However, an employment tribunal decision is a first instance decision in the UK and therefore not a safe case law authority to rely on; thus making the UK government’s rebuttal of the Committee of Experts’ observation all the more difficult.
Need for international support
Given this legal uncertainty in the UK, the government is likely to need international support from within the CAS to see off the committee’s request that the government takes steps to ensure that at least all the prohibited grounds of discrimination specified in article 1(1)(a) of C.111 are included in the Equality Act 2010. That support is unlikely because governments, workers and employers will not want to undermine the ILO’s supervisory machinery by granting the UK an exemption from adhering to the letter of one of its fundamental conventions.
But will the workers and employers put the UK C.111 on their list of cases this June? In these times, the tripartite constituents of the ILO surely expect the CAS to consider a diverse range of labour standards. If so, the UK case is certainly worthy of strong consideration to make the list of cases in order to complement the other C.111 cases involving China and Malawi that must be heard.
Chris Syder is the former ILO Governing Body representative for UK Employers, former ILO Employer Vice-Chair for the Committee on Freedom of Association and former ILO Employer Vice-Chair for the Committee on Application of Standards.
[1] A case where a belief in man-made climate change, and the alleged resulting moral obligation to act, was capable, if genuinely held, of being a ‘philosophical belief’ for the purposes of the Employment Equality (Religion or Belief) Regulations 2003)
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