07 March 2014 #Employment
The Order that abolishes the Equality Act’s statutory discrimination questionnaires has now been published. This will mean that individuals won’t be able to obtain information from their employers using the prescribed questionnaire procedure where the discriminatory acts complained of take place on or after 6 April 2014. The procedure can still be used for acts occurring before this date though.
Currently, the Equality Act 2010 allows a person who thinks they may have claims for discrimination, harassment or victimisation (including equal pay claims) to obtain information from their employer by serving a prescribed questionnaire. The questionnaire and response are admissible at Tribunal and Tribunals can draw an adverse inference if employers don’t reply to the questions within 8 weeks or give evasive or equivocal answers. The procedure has been a powerful weapon for individuals, providing the tactical advantages of requiring employers to respond prior to the claim being lodged and gaining useful information far in advance of disclosure.
The move to abolish the formal questionnaire procedure has surprised some, given that 83% of the responses to consultation were opposed to abolition. However, complainants may still ask their employers questions and a Tribunal can still draw adverse inferences from evasive answers or a refusal to respond, despite the lack of a statutory process. ACAS has issued guidance which encourages employers to deal with potential discrimination "seriously and promptly" despite the lack of statutory deadline. Arguably employers could, in theory, take a more robust approach towards unreasonable requests for information from employees, although as responses can still impact on the outcome of a discrimination claim employers need to carefully consider their answers. In addition, although many employers may welcome the abolition of lengthy and time consuming questionnaires, the knock-on effect could be to increase futile discrimination claims as employees are without an effective way of establishing discrimination early on.
For more detailed guidance on the various forms of unlawful discrimination see the discrimination section on Buddy.