After a few particularly bruising recent encounters with discrimination questionnaires (on both sides of the fence), I have been waiting with some impatience for their long-trailed abolition. The Enterprise and Regulatory Reform Act 2013 (Commencement No. 6, Transitional Provisions and Savings) Order 2014 has now been published, implementing this with effect from 6 April. So, acts of alleged discrimination occurring on or after that date will no longer be covered by the formal questionnaire procedure, and individuals who believe themselves to have been discriminated against will not have a prescribed channel to seek to obtain early disclosure of information from their current or former employer.
Many will recall the striking decision to go ahead with the abolition of the questionnaire regime (as part of the government’s ‘red tape challenge’) despite the fact that during consultation, over 80% of respondents (you’ll have gathered I was not necessarily one of them) declared themselves opposed to the idea. But how much difference will the change make in practice? The formal questionnaire process contained in the Equality Act 2010 permits tribunals to draw adverse inferences from a failure by an employer to respond within a prescribed period, or from the provision of an evasive or equivocal reply. So one might think that the removal of the statutory procedure would in turn remove the ability for employment tribunals to draw such inferences. However, it is clear from the notes to the Enterprise and Regulatory Reform Act that notwithstanding the abolition of formal questionnaires, a complainant may still ask questions of their employer, and a court or tribunal may still draw adverse inferences from a refusal to respond or from evasive answers.
ACAS guidance on the subject has been published. (http://www.acas.org.uk/media/pdf/m/p/Asking-and-responding-to-questions-of-discrimination-in-the-workplace.pdf). The guidance sets out a six step process for individuals to use when seeking information from a respondent. The sample procedure bears a spooky resemblance to the format of the questions contained in the existing statutory questionnaire, and there is a template document for questioners to use. The guidance goes on to make clear that there remains no legal obligation on employers to answer questions, and encourages all parties to seek to resolve matters outside the litigation context (with a plug for early conciliation). Respondents are encouraged in a helpful tip ‘to share as much information in the answers as they feel able to do, since this can help a speedier resolution of the dispute’. I’m sure in some cases that may be true, but in most recent questionnaire scenarios in which I’ve been embroiled, no amount of provision of information was going to stop the dispute, and indeed, in some cases the complainant could have been handed a significant early advantage in litigation by what effectively amounts to early-stage disclosure, whilst front-loading cost and effort for the respondent. That was, of course, one of the government’s key stated objections to the statutory procedure – their increasingly standard use as a litigation tactic to increase the burden on employers. Being even-handed about it, one can see that in some cases the procedure had the scope to focus the parties’ minds early and potentially lead to settlement, and that by gathering information early in the day, claimants were able to take a clearer decision on whether or not to go to tribunal. This takes on particular importance with the arrival of tribunal fees.
Whilst an individual or employer is under no legal obligation to answer questions, a tribunal will still be able to look at whether questions have been answered (and how they have been answered) as a ‘contributory factor’ in making its decision on a discrimination claim. It may also order such information to be provided as part of legal proceedings in any event.
So what difference will this make in practice? Arguably not as much as might initially have been thought, though the removal of 8 week time scales etc is certainly helpful for respondents (albeit it may just generate satellite litigation as to what a reasonable time frame for a response may actually be). It remains to be seen whether tribunals do adopt a similar approach in assessing responses/non-responses and drawing inferences from what is now effectively a voluntary rather than statutory process – one would imagine a higher threshold will be applied in the majority of cases, but that remains to be seen. ACAS may well be of the view that mandatory conciliation will (to some extent) plug the gap and that any formal avenue lost to claimants via the repeal of the questionnaire procedure will be replaced instead by the involvement of a conciliator at an early stage in tribunal proceedings. Time will tell.