The Discrimination Questionnaire Is Dead – What Do I Do Now?
Employment law solicitor Natalie Ruane discusses discrimination.
It is normally difficult for employees to prove that they have been discriminated against. Most employers (or fellow employees) don’t say that the reason that something has or hasn’t happened is, for example, because of an employee’s age or the colour of his or her skin. Discrimination is often more subtle than that and the employee has to “draw an inference” from something that has happened to ‘prove’ the case. Showing a pattern of behaviour, which might create a stronger inference, can be hard because the employer usually holds most of the information which would either support or disprove the allegations being made.
In acknowledgement of the difficulties that employees might face, the statutory questionnaire system was created. This meant that an employee who felt that they had been discriminated against could submit a form to their employer asking various questions about the treatment that he or she felt had been discriminatory. That form could be served on the employer at any time before a tribunal claim was submitted, or within a 28-day period beginning with the day on which the claim was submitted. Under the questionnaire system the employer then had 8 weeks to reply to the questions. If the employer failed to reply within 8 weeks, or if the answers given were evasive or equivocal, then inferences could be drawn that discrimination had occurred.
Questionnaires were often used as a settlement tactic because replying was costly and time consuming for employers. This has been recognised by the Government and, earlier this year, the statutory questionnaire system was abolished. It has been replaced by an informal, non-legislative approach. The idea behind the new system was to make it less bureaucratic and it is claimed that the new system will make it easier for employers to challenge any unreasonable requests for information.
Instead of statutory rules, there is now Acas guidance for both employees and employers to follow. That guidance can be found on the Acas website at:
The new system will operate as follows:
An employee who believes that they might have been discriminated against can write to his or her employer giving details of the name of the person or organisation that the employee thinks may have discriminated against him or her. The employee should give details of the protected characteristic(s) that he or she is relying on and a brief factual description of the treatment, or lack of treatment (or the failure to make a reasonable adjustment in the case of a disabled person) and the circumstances leading up to that treatment. Ideally, the employee should also mention which type of discrimination (for example direct or indirect discrimination) is suspected and give an explanation as to why the employee believes that the treatment was discriminatory before asking the questions that the employee believes will help him or her to determine whether discrimination has occurred. The Acas guidance recommends asking questions about statistics, and whether any relevant policies and procedures have been followed as part of that search for information.
The Acas guidance contains a special section to assist those who might want to ask questions relating to Equal Pay and gives details about the kind of information the employer is likely to need (such as who the employee is comparing him or herself to and why the employee believes that the work being done is of equal value) to answer questions of that nature. There is no different procedure for equal pay queries. The guidance just helps to highlight that the information requested (and supplied) will be slightly different.
Under this new system the employee is expected to give a date by which he or she would like a response and to give information about where the response should be sent for example, to the employee’s home address or to his or her legal or trade union representative.
If the employer feels that the questions are unclear or irrelevant, the Acas guidance encourages the employer to speak to the employee to try to agree a way forward and to help the employer “to reply appropriately”. Where the information sought is commercially sensitive or otherwise confidential (for example, protected under the Data Protection Act), the new Acas guidance makes it clear that employers have the right to provide the information in a “non-specific” or redacted manner. The guidance also makes it clear that, although there is no set deadline within which a response needs to be provided, it is important to respond within a reasonable period and if the employer cannot meet any deadline set by the employee, the employer is expected to contact the employee to discuss this and to try to agree an alternative date.
The Acas guidance stresses that a request for information should be dealt with seriously and promptly by the employer. Employers need to take care though. Although the Acas guidance focuses on the fact that responding to questions at an early stage can lead to a resolution of issues without litigation, employers should also be aware that any admissions made could cause problems later down the line. An employer might also face difficulties in determining whether the employee is making a request for information or submitting a grievance.
With that in mind, the guidance makes it clear that an employer is not under a legal obligation to answer any questions raised under this new scheme. However, if the employee is still employed when the questions are submitted, there might be a risk of a constructive dismissal claim if the refusal to answer is unreasonable. There will also be risks for employers if an employee is treated badly or less favourably after questions have been submitted. In that case the possibility of a claim of victimisation under the Equality Act 2010 might arise. In addition to which, an Employment Tribunal may look at whether an employee has answered the questions and how they have answered them when making their overall decision in a discrimination claim.
With the risks in mind, employers who receive requests for information should seek legal assistance as soon as possible to ensure that any response given isn’t going to increase the chances of a claim or lead to greater compensation at a later date. Any employers in this situation who would like assistance should speak to Natalie Ruane at Burnetts Solicitors on 01228 552222 or by email at firstname.lastname@example.org
About the author
Natalie is a Partner and leads the Employment Law & HR team and specialises in education.
Published: Tuesday 26th August 2014