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Discrimination questionnaires post 06.04.2014 - if it walks like a duck…

Sunday 6 April 2014, was an important day.  No, I am not thinking about the fact that Cambridge lost yet another Boat Race; I am trying (unsuccessfully I admit) to blot that out - although at least the University Challenge grand final yesterday was a little more encouraging to any light blues out there...  Rather, I am referring to the raft of employment law changes that came into force including: the introduction of ACAS early conciliation; employers becoming liable to fines for losing at Tribunal; and the cessation of formal use of discrimination questionnaires under section 138 of the Equality Act 2010. 

In relation to this last point, as Rachel mentioned in her post on 6 March, the end of formal use of discrimination questionnaires is not the end of the story: questionnaires can still be used by would-be claimants and adverse inferences can still be drawn from the potential respondent’s failure to respond fully and in a timely fashion.  Indeed, there is now an ACAS Code detailing how this will work.  Personally, I take the view that the purported change is largely unhelpful for employers because the time limits for serving a questionnaire no longer apply and the procedure has become woollier, yet the sanction for failure to respond does.  Moreover, I have yet to see a questionnaire serve the purpose they are intended for, namely to encourage the parties to settle the matter before a claim is issued.  In my experience, they rank alongside the subject access request as a powerful tool for the employee seeking to cause maximum disruption in the course of a dispute.  Of course, your view on whether that is a good thing or not will depend on your perspective.  Either way, employees need to know what to put in their questionnaires and employers need to know what to do when they receive one.  Here are some practical tips for things to think about when drafting or responding to them:

  1. Review the information in the initial section(s) of the questionnaire to see if it is adequate – there should be a summary of the events complained of and an explanation of why they are alleged to be discriminatory/unlawful.  This is not simply a formality: if a claim is brought it will form the basis of the complaint the employer has to answer and therefore the documents that must be disclosed and matters for the witnesses to address in their statements;
  2. Identify the protected characteristic(s) under the Equality Act 2010 that the alleged discrimination relates to (the possibilities are age, sex, race (which includes nationality), religion/belief, pregnancy/maternity, sexual orientation, marital status, disability and gender reassignment);
  3. Work out an approximate timeline of events (and in particular whether the last event complained of occurred less than three months ago) – this will not be decisive in terms of whether or how a response to the questionnaire is formulated but it will be informative of how likely it would be that any potential claim would be in time;
  4. Identify the strand of discrimination that the alleged conduct might amount to (being broadly speaking direct discrimination, indirect discrimination, harassment, victimisation, failure to make reasonable adjustments and/or discrimination arising from a consequence of a disability);
  5. Consider whether there are any obvious defences available to the employer (such as lack of knowledge of the protected characteristic, no less favourable treatment, objective justification, reasonable steps to prevent another employee harassing the potential claimant and so on);
  6. Assess whether what has been requested is an existing document and, if so, whether this would disclosable in the event of litigation, a Freedom of Information Act request (if applicable) or a subject access request under the Data Protection Act.  If so and the material does not take matters much further, the employer may choose to send it early with a view to being helpful and transparent.  Equally, if it is felt to be in some way damaging, the employer may hold it back unless/until the duty to send it for the reason(s) stated is engaged;
  7. Consider whether, rather than being an existing document, the request is in fact seeking information and how proportionate it would be to deploy the time/effort/resource to collate it;
  8. Consider whether there are any reasons why the information should not be disclosed or needs to be redacted before it is sent – is it legally privileged, commercially sensitive or personal data about other (identifiable) employees?;
  9. Consider whether it could be said that the questionnaire is vexatious or a fishing expedition to trawl for information to use against the employer;
  10. Contemplate whether, rather than asking for documents or information, the questions are simply an attempt to cross examine by questionnaire and could therefore be said to be inappropriate.

Points 1-5 are helpful to both employers and employees in any situation where a discrimination claim may be in the offing.  Points 6-10 require a little more care and I would not advise employers to deploy them without giving serious thought to (and taking advice on) the potential consequences of responding to a questionnaire on this basis.

Right, I am off to research ACAS early conciliation.  No rest for the wicked…

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