ACAS has published guidance about how employers and workers should operate in the legal vacuum created by the abolition of the Equality Act questionnaire procedures with effect from 6 April. As well as the obvious disadvantages for employees, the repeal of these measures may have unexpected consequences for employers.
The key question is how employers should respond to requests for information from workers in relation to possible breaches of the Equality Act from April onwards. With the repeal of the questionnaire procedure, failure to reply within 8 weeks (or giving an “evasive or equivocal answer”) will no longer of itself entitle the employment tribunal to draw an inference adverse to the employer’s case.
However, as the guidance points out, that does not mean that requests for information should be ignored. There could be a number of reasons for dealing with some or all of the questions, the most potent of which will be the hope that by providing a full response to the allegations a tribunal claim can be avoided. Other reasons include the possibility that this information could be obtained in any event, for example by an order for disclosure in subsequent proceedings. In addition the failure to provide this information may be considered by the tribunal in the context of all the other documents relevant to the dispute, so being uncooperative or overly defensive could still damage the employer’s case.
It follows that while ending the questionnaire procedure will reduce some of the formality associated with dealing with potential discrimination claims, questions about possible claims under the Equality Act will still require very careful handling. In some ways the loss of formality may make life harder for employers. It may be more difficult to spot when these questions come in and could encourage an unhelpfully casual approach to dealing with them.
Making a request for any kind of information about possible breaches of the Equality Act will remain a protected act for the purpose of the statutory protection against victimisation. So any adverse treatment of a questioner because they have asked questions of this kind in good faith could give rise to a claim in its own right.