Following the Government’s ‘Red Tape Challenge’ and its commitment to reducing the burden of regulation on businesses, the Enterprise and Regulatory Reform Act 2013 included a provision to repeal section 138 of the Equality Act 2010, which takes effect from 6 April 2014.
The statutory questionnaire procedure was first introduced under the Sex Discrimination Act 1975, with the aim of assisting employees to determine whether they had a valid claim for discrimination. Section 138 Equality Act 2010 currently sets out the discrimination questionnaire procedure, under which employees can seek relevant information from their employer about a potential claim across all the protected characteristics under the Act.
The questionnaire can be submitted either in advance or following the lodging of a discrimination claim, and can prove a useful tactical advantage for claimants to seek information that would otherwise be very difficult to find out. For employers they can prove very time consuming and difficult to deal with.
Whilst not obligatory, if an employer fails to respond to a questionnaire within eight weeks, or provides evasive or equivocal answers to the questions, it is open to the employment tribunal to draw adverse inferences in determining the outcome of a claim.
From 6 April 2014, the statutory questionnaire procedure will be abolished and no such adverse inferences can be drawn from an employer’s failure to respond to an individual’s questions about discrimination. This will no doubt come as a welcome relief to those employers who have been at the receiving end of a questionnaire.
Acas has published new guidance for individuals and employers on asking and responding to questions of discrimination in the workplace, once the statutory procedure has been removed.
The new guidance provides an overview of discriminatory conduct covered by the Equality Act 2010, and sets out recommended steps for individuals to follow when asking questions. It also includes a template for individuals to use.
The guidance clarifies that employers should not ignore questions about potential discrimination at work, recommending that they should be dealt with “seriously and promptly”. It also sets out recommended steps for employers to follow when responding to such questions.
As the guidance points out, whilst an employer is not under any legal obligation to answer questions, a tribunal may take an employer’s response (or lack of response) into account as a contributory factor in determining the outcome of an individual’s claim. A tribunal may also order the disclosure of the relevant information during the progress of a claim in any event.
We would therefore encourage employers not to assume that they no longer need to respond to questions relating to discrimination in the future. Certainly, it may be open to employers to take a more robust view on whether certain information needs to be provided, but as a precaution it would be worthwhile seeking legal advice on whether it is justifiable to withhold the information.
A copy of the new Acas guidance is available here