The Government will be abolishing the statutory discrimination questionnaire procedure from 6 April 2014 as part of its mission to reduce the burden on businesses. In its place, Acas has produced non-statutory guidance addressing how individuals should ask questions raising issues of discrimination / equal pay and how employers should respond.
The current statutory questionnaire procedure is set out in the Equality Act 2010. It enables an individual who thinks that he/she has been the subject of discrimination to ask questions of his/her employer to establish whether unlawful discrimination has occurred. Questions can generally be asked at any time before Tribunal proceedings have started, or within 28 days of starting the proceedings. An employer is obliged to respond within eight weeks. The answers are admissible in Tribunal proceedings and a Tribunal can draw an adverse inference from a failure to respond or an equivocal or evasive response. There are prescribed forms for asking and answering questions. Following a consultation in May 2012, the Government announced that it would abolish the statutory questionnaire procedure. The abolition takes effect on 6 April 2014 but the statutory procedure can still be used in relation to discrimination occurring before that date.
The Government was clear that it would remain open to an individual to ask an employer about a situation where the individual thinks that he/she has been discriminated against and indicated that Acas would provide guidance to assist individuals and organizations. This guidance has now been published (the "Guidance"). A copy of the Guidance can be foundhere.
The Guidance sets out six steps for individuals (referred to as "questioners") to follow when requesting information in a discrimination context. These echo the existing prescribed questionnaire forms and include:
- identifying the protected characteristic in question;
- providing a brief factual description of the treatment and the circumstances leading up to it;
- identifying the "type" of discrimination suffered (e.g. direct, indirect, harassment, victimization);
- explaining why the questioner considers the treatment to be discriminatory; and
- asking any additional questions they consider might be relevant. Here, the Guidance specifically notes that a questioner can ask for "statistical information to show how people with their protected characteristic are treated within the organization."
For equal pay, the Guidance sets out only three steps for a questioner to follow when making a request for information (identification of a comparator, why the questioner thinks they are doing equal work and a sweep up for other pay-related questions).
Questioners should ask the employer to respond by a set date. There is no guidance on how long this should be. Employers may therefore be faced with requests to provide information in much shorter timescales than the existing eight weeks. The Guidance does not repeat the current rules regarding the stage at which questions can be asked, but assumes in various places that the questions will be asked at the pre-claim stage.
The Guidance for employers is very short. Acas emphasizes the need for the employer to treat the request seriously and deal with it promptly. Interestingly, it suggests that the employer should talk to the individual (or their representative) about ways to resolve the dispute at the outset. In its view, many disputes can be resolved in this way. The overall message to employers is not to ignore the request.
The Guidance places the onus on the employer to follow up with the individual to clarify the purpose of a question if it considers it irrelevant or unclear in order to enable the employer "to reply appropriately".
There is no direct penalty for breach of the Guidance. However, a Tribunal may look at whether a responder has answered questions and how they have answered them as a contributory factor in making their overall decision on the questioner's discrimination claim (see further below). The Guidance refers to the fact that a Tribunal can make an order for the employer to provide information as part of legal proceedings, but any request for an order would need to be made in accordance with the existing tribunal rules.
The key reason why employers typically respond to a questionnaire is to avoid an adverse inference being drawn in a subsequent discrimination claim. However, repealing the statutory process will not necessarily give employers a "get out of jail free" card if they ignore a request for information post 6 April 2014.
European case law suggests that, although employers do not need to disclose information to an individual, domestic courts may take a refusal to do so into account as part of the wider factual matrix when determining a subsequent discrimination claim (Meister v. Speech Design Carrier Systems GmbH). Therefore the fact that the questionnaire mechanism - including the language about adverse inferences - has been removed will not stop a Tribunal from taking this into account when considering whether the burden of proof in a discrimination claim has shifted, or otherwise when determining the merits of the underlying claim.
Although the Guidance suggests that questioners should set a deadline for a response, it is unlikely that a Tribunal would draw an inference from a failure to comply with an unreasonable deadline although it would generally be advisable to explain why the deadline is not practicable and to provide a response without unreasonable delay.
In any case, a determined individual is likely to seek at least some of the information by another, potentially even more burdensome, route such as by making a subject access request. Ignoring a request for information wholesale does therefore carry with it some risk.
Another feature of the abolition of the questionnaire procedure is the removal of the prescribed forms. Whereas a manager within an organization receiving a questionnaire in a prescribed form would almost certainly realize that it should be forwarded on to HR or Legal; the importance of responding to an individual list of questions sent by email might be less obvious. Employers would therefore be wise to advise their managers in advance that any communications from an individual raising a suggestion of discrimination should automatically be forwarded to HR.