From 6 April 2014,
statutory questionnaires are being abolished in discrimination cases. Will this
make any difference to how litigation of this nature is conducted?
Discrimination questionnaires have been a useful weapon for
individuals in the past as they have permitted them to gain information far in
advance of disclosure in the tribunal. They have also allowed individuals to
obtain information that is not normally available on disclosure such as
statistics on the racial or gender breakdown of an organisation.
Whilst responding to a questionnaire was never obligatory, a
tribunal could draw adverse inferences in the event that an employer
unreasonably failed to provide accurate answers.
So will the abolition of these questionnaires remove any
tactical advantage that an individual once had in discrimination claims? Our
view is that it is unlikely to make much difference.
Acas has produced some useful new guidance on asking and
responding to questions of discrimination in the workplace.
The guidance encourages employers to deal with potential
discrimination at work “seriously and promptly”, however as there will no
longer be a statutory deadline for responding to questions, it is difficult to
see how this is going to be enforced.
Whilst the statutory right to draw an adverse inference if
an employer fails to answer or to provide accurate answers to questions has
gone, a Tribunal will nevertheless be able to look at the way in which an
employer has answered any questions as a contributory factor when making their
overall decision on the questioner’s discrimination claim.
In theory employers are now in a stronger position to take a
more robust approach towards unreasonable requests for information. However, it
would be unwise for employers to relax their approach completely, especially if
they are keen to try to avoid an increased number of unmeritorious
discrimination claims landing on their desks. We would suggest employers take
legal advice if in doubt about what questions should be answered and in what
level of detail.