The Enterprise and Regulatory Reform Act 2013 abolishes discrimination questionnaires with effect from 6 April 2014. This is a surprising development and an unwelcome one for claimants. Employers on the other hands are likely laud the abolition, since it does away with what many have called a cumbersome and unnecessary step in litigation. The abolition is a further step along the road of deregulation, part of the government’s Red Tape Challenge which proposed to abolish unnecessary administrative burdens on business and the Employment Tribunal alike. Discrimination questionnaires have proved a powerful weapon in the armoury of litigants. They afforded the ability to ask questions of an employer in advance of litigation as a means of extracting information and evidence of unlawful treatment. Questionnaires were routinely used to extract statistical information concerning gender or racial inequality. It has never been compulsory on the part of employers to respond to questionnaires but an Employment Tribunal could draw adverse inferences from such failure in the same way as it could draw inferences from unhelpful or evasive replies to cross examination. In the absence of questionnaires, ACAS has provided guidance on how best to ask and respond to questions. The guidance recommends that employers should adopt the following steps when responding:
- Confirm whether they agree, agree in part or disagree with the Claimant’s description of the alleged discrimination;
- Confirm whether the treatment was justified. This would be relevant only to a claim of indirect discrimination or direct age discrimination;
- Respond to the remaining questions. If an employer considers questions to be unclear then rather than simply refusing to answer them, it should seek clarification.
Like all other ACAS guidance, it is not compulsory, nor does it have statutory effect. Having said that, it is best not to ignore it, because an Employment Tribunal might make a dim view of a deliberate failure to respond. The guidance advises employers to respond to questions “seriously and promptly”. The employer should also consider carefully the most appropriate way to respond given the possible implications of any response. If the employer chooses not to answer, then a claim may be lodged at Tribunal that could otherwise have been avoided by providing clear answers in the first place. Furthermore, a Tribunal may order the employer to provide answers in any event as part of the claim. If you are faced with questions then it is always sensible to seek advice about the best way of responding to them. It is also sensible to consider ways of avoiding disputes before litigation commences. Good practice suggests that employers should share as much information in the answers as they feel able to do, since this can help a speedier resolution of the dispute, or prevent escalation to a formal complaint because the person asking the questions has become frustrated. Of course, it is a different matter if litigation has already commenced in which case you may feel that a more guarded response is sensible. We recommend that you read the guidance which is very clear and helpful. Further information can be obtained from the ACAS website at www.acas.org.uk.