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Proposed abolition of statutory discrimination questionnaires

11 April 2013

On 6 April 2014 the statutory discrimination and equal pay questionnaire process will be abolished and replaced, it is proposed, with informal guidance from ACAS. Employers will need to understand how to respond to informal questionnaires served after the abolition.

The current statutory process:

  • written questionnaires can be served on any person or organisation whom they believe has unlawfully discriminated against them or in contemplation of an equal pay claim
  • questionnaire can be served any time before an employment tribunal claim is issued or within 28 days after issue
  • responses should be provided within 8 weeks
  • failure to provide any response (or if only an evasive response is given) will result in an adverse inference of discrimination by the tribunal.

The current process can be problematic for employers in that they are often put to considerable effort in collating their response and sifting relevant questions from those which are fishing for evidence. However, it has played an important part in enabling a complainant to preserve evidence and / or secure evidence at an early stage to support their belief that they have suffered inequality of treatment. As it is not unusual for there to be little or no direct evidence of discrimination, tribunals are invited to draw inferences from circumstantial facts and background evidence. 

The questionnaire process is particularly useful in indirect discrimination cases, where the complainant needs to show that the employer's apparently neutral practice, policy or criteria has a disproportionate adverse impact on them because of their protected characteristic (eg their gender or race). The information provided in response to questionnaires is often unlikely to be provided through the normal tribunal disclosure process, particularly statistical analysis such as, for example, breakdown of an employer's gender or racial make-up across the employee population or specific parts of it. Equally, however, employers can head off potential claims by providing substantive explanations dispelling complainant's suspicions. Without a proper response, a complainant will have to rely on less direct background evidence or national statistics to support their claim, reducing the quality of evidence before the tribunal.

However, if employers are not really required to provide a response following abolition of the statutory process, it is possible that complainants will not press on with claim as by the Summer they will have to pay a non-refundable tribunal fee (£250) to commence the claim and a further fee (£950) to continue it to hearing.

Unintentionally, the abolition could result in satellite litigation surrounding the employer's obligation to respond to informal questionnaires (which will replace the statutory process) and the scope of the inferences which tribunals can draw from failures to respond. Case management will most likely increase.

The proposed informal process:

  • informally questions can be raised in writing in discrimination and equal pay claims
  • no statutory obligation to respond substantively or at all
  • employers should consider ACAS guidance on how or whether to respond, but will have more opportunity to avoid responding or providing detailed responses than the current process.

ACAS will be tasked with drafting guidance on how complainants can ask questions of their employer and why and how employers should respond. The status of the proposed ACAS guidance is unclear, but is unlikely to have any significant penalty for an employer if it is not followed unless it is elevated to a Code of Practice. If it is a Code rather than guidance, employers failing to follow it will risk adverse inferences from the employment tribunal. Larger employers who are perceived as having greater administrative resources to respond to informal questionnaires will most likely bear the burden of responding to questionnaires raised after the abolition of the statutory process.

This article was written by Emma Bartlett.