So what?

A defined system for providing and eliciting information pre-proceedings has gone. In its place – but not strictly replacing it – is guidance from ACAS. It is a recipe for increased litigation over whether, what and when employers should disclose in response to allegations and claims of discrimination. Businesses and employees would be well advised to consult the new guidance or find themselves possibly embroiled in costly and unnecessary satellite disputes.

What are the questionnaires?

They are a series of questions asked by an employee of an employer pre-proceedings that are relevant to an allegation of discriminatory treatment.[1] The employee informs the employer of the nature of alleged unfavourable treatment. They may then ask questions such as – how many ethnic minorities are employed in my division? What was the gender of those selected for redundancy?  Have any similar complaints been made against a specific person?

What purpose do they serve?

It is a useful method of discovering whether a claim has merits and the evidential basis for bringing it. Although an employer is not obliged to answer the questions a Tribunal may draw inferences from a failure to answer or evasive or ambiguous answers.

Why get rid of them?

The use of questionnaires was criticised by some as encouraging time-consuming fishing expeditions. The Government accepted that ‘it was a regulatory process where mandatory and voluntary elements are mixed together with confusing and burdensome results’.[2]

What has replaced them, if anything?

The provision that enables much of the above is section 138 of the Equality Act 2010. It will be omitted from the 2010 Act and is not replaced by any new provision.

When will this come into force?

6 April 2014. It does not apply ‘for the purposes of proceedings that relate to a contravention occurring before this section comes into force’.[3]

What difference will this make for employees?

On the face of it, not much. Employees can still make a pre-action request for information. There is guidance from ACAS that may assist: Asking and responding to questions of discrimination in the workplace.[4] But fundamentally, any question should be relevant to the issue complained of. If it is, an employee can put an employer on the spot to respond. But what questions should an employee ask? The questionnaires are defunct. Would an employee know what questions to ask in light of the complicated nature of discrimination law? The answer is an enterprising individual could rely on the form and content of the previous forms or, seek legal advice.

What different will this make for employers?

On the one hand, not an awful lot – an employer is not obliged to respond but any failure or evasiveness in face of relevant questions could be used by the employee to invite a Tribunal to draw negative inferences. On the other hand an employer also lacks a clearly defined form that guides them as to what can be asked and how to respond. Furthermore, if the questions are not properly worded or directed, the answers may be confusing or not forthcoming. This might have knock-on effects for how the claimant puts his or her case and/or lead to applications to the Tribunal to direct provision of information.

Conclusions

The upshot of is this that employees and their advisors will still try and devise searching questions, and, employers and their lawyers will try to provide carefully crafted responses. Arguments over what should and can be asked and disclosed, how it should be disclosed and what effect it might have, have little reference point other than the facts of the case – so far as they are known – and non-binding ACAS Guidance.

Employees have less to work with and employers have more wriggle room.

Therefore, there may be greater need for pre-action advice and, most likely, more disclosure battles once proceedings are underway. In other words, quite how this reduces the burdens on employers remains to be seen.



[1] Available on the EHRC website at http://www.equalityhumanrights.com/advice-and-guidance/your-rights/using-your-rights/taking-a-claim-to-county-court-england-and-wales/4-statutory-questionnaires/.

[2] Equality Act 2010: employment tribunals’ power to make wider recommendations in discrimination cases and obtaining information procedure, Government Response to Consultation, October 2012, para 109.

[3] Enterprise and Regulatory Reform Act 2013, s 66(2).

[4] Available at: http://www.acas.org.uk/media/pdf/m/p/Asking-and-responding-to-questions-of-discrimination-in-the-workplace.pdf.