On the 6th April 2014, the statutory discrimination questionnaire will be abolished. Currently, s138 of the Equality Act 2010 allows a person who thinks that they have been discriminated against to obtain information via a questionnaire in a prescribed format from their employer/prospective employer. The questionnaires cover discrimination, harassment and victimisation claims. Whilst the format has changed these questionnaires existed before the Equality Act and were frequently used in discrimination claims.
They were not popular with employers. They could be extremely time consuming for the employer and the Tribunal could draw adverse inferences from the failure to answer within the prescribed eight weeks or for answers that were equivocal or evasive. Employees liked the questionnaires as they could use them tactically but also found them useful for gaining information they would otherwise of not had access to. The Government consulted on the notion of scrapping the questionnaire and notwithstanding the fact that 83% of those that responded to the consultation were opposed to the abolition, the Government pushed ahead with its plans.
Before employers sigh in relief, there is a replacement for the questionnaires. They have been replaced with informal questions and answers. Employers should however not be fooled by the name given to the process as whilst there is no legal obligation to answer questions, a Tribunal will still be able to look at whether and how the questions have been answered as a contributory factor in making its overall decision in a discrimination claim. A tribunal or court may also order such information as part of disclosure.
ACAS have issued guidance on how informal questions may be asked and how best to respond. The guidance can be found here. (http://www.acas.org.uk/media/pdf/m/p/Asking-and-responding-to-questions-of-discrimination-in-the-workplace.pdf)
Written by
Edward Aston
1st April 2014