Public pressure can solve a lot, including encouraging the British Government to change its mind about the guidance given on free school meal parcels for Britain’s poorest children. But this treats the symptoms of inequality, rather than the cause. So far, no formal steps have been made to recognise “social origin” as a protected characteristic under section 4 of the United Kingdom’s Equality Act 2010, and therefore there is no section 149 duty to not discriminate based on this ground. As a result, discrimination based on social origin is normalised. This is particularly alarming considering the Equality Act protects an expansive nine characteristics: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.
Not recognising social-origin not only allows “classism” to permeate in employment contexts, but it also undermines the entire purpose of the Equality Act to protect individuals from inequality. It is understood that the scope of defining “social origin” has so far been met with a jurisprudential block. That being said, a recent Trades Union Congress (TUC) report has advanced the idea of legislation to make discrimination on the basis of class unlawful, which evidences a clear shift in public consciousness on the matter.
UK GOVERNMENT’S CURRENT APPROACH TO SOCIO-ECONOMIC INEQUALITIES
Despite section 1 of the Equality Act placing a “duty to regard” socio-economic inequalities, this is not fulfilled in reality. Unlike the section 149 Equality Act public sector duty which applies to all functions of a public body to protect the nine characteristics, the section 1 duty only applies to the strategic decisions of a public body. In practice, this means that public bodies have wide discretion on implementation of section 1. Unlike the section 4 characteristics, there are no legal remedies for failure of compliance or discrimination against individuals based solely on their social origin. Section 3 admits this, stating: “A failure in respect of a performance of a duty under section 1 does not confer a cause of action at private law.” This literally means it is legal to discriminate based on social origin.
The lacuna in legal protection is important because those from more privileged backgrounds are 80% more likely to be in an elite profession compared to their working-class peers and those from working class backgrounds earn 24% less a year. Furthermore, the Social Mobility Commission concluded that unpaid internships played a role in excluding working class people from professional roles. For the UK’s younger generations, social mobility can seem like a myth.
There has been a slight evolution in the courts of England and Wales in aspects of “social origin” since the 2014 Employment case of Chandhok & Anor v Tirkey [2014] (UKEAT 0190 (19 December 2014)) which held that “caste” discrimination is capable of being unlawful under the Equality Act, provided the case came under race discrimination under section 9. As a result of Chandhok, section 97 of the Enterprise and Regulatory Reform Act rendered “caste” an element of racial discrimination. Social origin beyond caste however has had no jurisprudential support.
LEGAL FOOTING FOR PROTECTION OF “SOCIAL ORIGIN”
Article 14 European Convention on Human Rights maintains:
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.
Despite this definition, the European Court of Human Rights (ECtHR) has so far not defined its precise scope. The distinction has been made between direct discrimination, defined in ECtHR jurisprudence as a “difference in the treatment of persons in analogous, or relevantly similar, situations,” which is “based on an identifiable characteristic” (Biao v. Denmark [GC], Application No. 38590/10, 24 May 2016, para 89). This is compared to indirect discrimination, defined in paragraph 103 of the same case as “a difference in treatment [that] may take the form of disproportionately prejudicial effects of a general policy or measure which, though couched in neutral terms, discriminates against a group.” [emphasis added]. Discriminatory intent is not required, only that the consequences are discriminatory, as held in D.H. and Others v. the Czech Republic [2007] (application no. 57325/00). Currently, both forms of discrimination occur against individuals, particularly children, based on social origin, but the precise lack of defined ECtHR jurisprudence has left a wide margin of appreciation for Member States on social-origin, where it is more limited under the grounds of, for example, sexuality or race.
In conclusion, it is time for discrimination based on “social origin” to be taken seriously to prevent further inequalities for children to repeat. Legislating social origin as a protected characteristic under section 4 of the Equality Act will not only place a duty on public authorities and employers to uphold equality, but it will also allow those from less privileged backgrounds a fairer chance at success through increased social mobility. The scope of “social origin” may be difficult to measure, but if we do not start somewhere, further tragedies like Grenfell and the free school meals scandals will continue to happen without legal repercussions.
Lucy is a current BTC LLM student, Middle Temple Benefactors Scholar & freelance Barrister’s Legal Assistant. She is an aspiring Immigration, Human Rights and Public Law barrister, with a particular interest in freedom of expression, human trafficking and asylum cases.