This article was published in Global Banking & Finance Review, May 2013.
Although employers are not legally obliged to respond to discrimination questionnaires, they are usually encouraged to do so because a tribunal may draw adverse inferences from a failure to reply or if the answers are evasive or equivocal.
In May last year, the Government Equalities Office acknowledged employers’ concerns and published a consultation paper which contained proposals to repeal the statutory discrimination questionnaire provisions, now contained in section 138 of the Equality Act 2010. These proposals form part of the Government’s commitment to cut red-tape for small businesses. The Government has decided to push ahead with the proposed repeal despite opposition from trade unions and equality lobby groups. It has stated that the removal of the statutory discrimination questionnaire provisions will not prevent individuals from seeking pre-claim information about potential allegations of discrimination through a more informal route.
Although employers may welcome the Government’s proposals, the benefit is likely to be limited. Employees and their advisers will inevitably seek out more creative and equally burdensome ways to elicit the same information currently obtained through statutory discrimination questionnaires. For example, where parties are already involved in litigation we are likely to see an increase in applications to the tribunal for orders for further information or disclosure. Similarly, there is nothing to prevent employees from submitting informal (non-statutory) questions as a pre-action request and then using their employers’ responses or failure to respond in evidence against them in proceedings. However, in the absence of legislation governing the procedure for obtaining such information, we are likely to see a concurrent increase in satellite litigation surrounding (i) whether an employer is obliged to respond to non-statutory questions; (ii) the time frame which is considered reasonable for an employer respond; and (iii) the extent to which inferences can be drawn by a tribunal in relation to an employer’s failure to respond.
The repeal of the statutory discrimination questionnaire provisions was expected to come into force in March 2013. However, as at the date of writing this article the Government had still not published a firm date for when the repeal will come into effect. Therefore the provisions relating to statutory discrimination questionnaires remain in force for the time being, but for how long we have yet to see.