As of 6 April 2014, following government consultation, the statutory questionnaire procedure (the “Statutory Procedure”) which was set out in section 138 of the Equality Act 2010 (and further particularised in the Equality Act 2010 (Obtaining Information) Order 2010), was repealed. This procedure was utilised by employees or job applicants who thought they had been discriminated against by their employer or potential employer. Using it, they could ask an employer questions relating to their discrimination to help formulate their claim. The Statutory Procedure was extremely onerous for employers and a failure by them to respond or giving vague/equivocal replies could have adverse consequences in the context of a claim. The Statutory Procedure however has now been replaced with non-statutory guidance from ACAS (the “Informal Approach”). This repeal was an effort by the government to reduce the legislative burden on businesses. Whilst the aim of this change is to make the process ‘fairer for all’ and enable employers to better challenge unreasonable requests for information; unfortunately, the practical effects of the repeal are currently unknown. It seems unlikely; however, that this change will fully encapsulate the original intentions.
The Statutory Procedure
The Statutory Procedure provided standard question and answer forms that complainants and employers could use (although the use of such forms was not mandatory). An employer who did not answer a question or answered it evasively or equivocally would be treated in the same way whether the question was asked on the prescribed form or not.
Under the statutory procedure a complainant could serve questions on an employer:
Whilst an employer was not compelled to respond to questions raised by a complainant at all, if it intended to, it would have been advised to do so within eight weeks of receiving the questionnaire. This is because a failure to adequately respond within this prescribed period or the provision of evasive or equivocal answers could result in the Employment Tribunal drawing an adverse inference against the Respondent. Indeed a failure to respond adequately or at all may have been sufficient to establish a prima facie case of discrimination for the Claimant and shift the burden of proof from the complainant (to prove that there was unlawful discrimination) to the employer (to prove that there was no unlawful discrimination).
Although the Statutory Procedure now technically no longer exists, it can still be used by employees in respect of alleged discriminatory acts that occurred prior to its date of repeal on 6 April 2014. There has also been some argument that the Statutory Procedure could be used by a complainant complaining of a continuing act of discrimination which began prior to 6 April 2014 despite the claim being issued some time later. If this is found to be the case, then the Statutory Procedure will continue to be relevant for some months, if not years, yet.
The Informal Approach
The new non-statutory procedure for asking and responding to questions is set out in guidance from ACAS (http://www.acas.org.uk/media/pdf/m/p/Asking-and-responding-to-questions-of-discrimination-in-the-workplace.pdf). This guidance outlines six steps for complainants to follow when asking questions:
Step 1 Set out the questioner’s and responder’s details.
Step 2 Identify which protected characteristic under the Equality Act 2010 may have been the subject of unfairness.
Step 3 Set out a brief factual description of treatment that the complaints relate to.
Step 4 Identify the type of discrimination you experienced (e.g. direct, indirect, harassment, victimisation, failure to make reasonable adjustments in relation to a disability).
Step 5 Identify why you think your treatment was discriminatory.
Step 6 Include any additional questions about treatment.
The ACAS guidance also contains specific details about issues to do with equal pay which is one area where the Statutory Procedure was routinely used.
It is evident from the six steps above that ACAS’s guidance echoes the format of the standard question form under the previous Statutory Procedure and, given that the questionnaires used under the Statutory Procedure are still easy to get hold of, it is possible that these will continue to be used, not least in template form.
In relation to responding to questions raised by a complainant, ACAS offers three-step guidance
as set out below:
Step 1 – Agree/disagree with questioner’s statement
The responder should consider if they agree, agree in part or disagree with the description of the treatment the questioner alleges they received at step 3. The responder should do some appropriate investigation then set out their version of the events. If a responder doesn’t wish to answer all the questions raised, see step 3 below.
Step 2 – Do you consider treatment was justified?
The questioner is suggesting that the behaviour they experienced was unlawful in that it amounted to discrimination. Although under the Equality Act 2010 direct discrimination cannot be justified unless it is because of age, it is possible to justify indirect discrimination in certain limited circumstances.
Step 3 – Responding to other questions
In addressing the questioner’s specific issues raised, the responder needs to consider and answer as appropriate. If a responder thinks some other questions are not relevant or unclear, they should clarify their purpose with the questioner to help them to reply appropriately. If a responder decides not to answer a question, they should explain why.
Although under the Statutory Procedure the employer had to respond within eight weeks to avoid any adverse inferences being drawn, the new Informal Approach is not as specific. The ACAS guidance advises employers to deal with questions about potential discrimination at work “seriously, promptly and as quickly as is reasonably practicable”. In any event, they should not ignore the questions asked. However, there is no guidance as to what a reasonable time to respond might be. The ACAS guidance advises a complainant to set a sensible date by which the employer should respond, however once again there is no guidance as to how long the complainant should give the employer. The implication of this under the Informal Approach is that an employer may be faced with a much shorter deadline than eight weeks and find itself having to either negotiate an extension of time or respond within the time limit set by the complainant.
Whilst the ACAS guidance does not provide any information about when questions can be submitted under the new regime, it is envisaged that a complainant will ask questions before lodging proceedings in an attempt to resolve the dispute prior to issuing a claim. However, this does effectively mean that, unlike the Statutory Procedure, there is no time limit imposed and a complainant could serve questions at any time during a claim without requiring the permission of the tribunal. This could effectively create a greater burden on an employer.
Has this change made any difference?
As with the Statutory Procedure, a respondent is not under a legal obligation to answer questions under the new Informal Approach but in addition and helpfully, a Tribunal’s ability to draw adverse inferences has been removed. That said, the ACAS guidance states that a Tribunal may look at whether a respondent has answered questions and how such questions have been answered when making an overall decision on the discrimination claim. Accordingly, employers who were relying on repeal of the Statutory Procedure, (and its potential “adverse inference” consequences) to remove the necessity of responding to onerous discrimination questionnaires, and allow them to take the informal questions less seriously, should reconsider their approach.
Indeed, whilst it was clear under the Statutory Procedure that a failure to respond adequately could be sufficient to establish a prima facie case of discrimination and shift the burden of proof, there is no reason why the situation is any different under the new system. EU case law suggests that a refusal to disclose information to an individual may be a contributory factor when determining a discrimination claim (Meister v Speech Design Carrier Systems GmbH C-415/10).
Accordingly, the repeal of the Statutory Procedure appears to have less impact on the ability of a Tribunal to take account of an employer not responding or responding evasively when considering the burden of proof or determining a substantive discrimination claim than originally anticipated.
Conclusion
Whilst the intention of this change was to reduce the burden on employers when presented with unreasonable and disproportionate discrimination questionnaires, there seems little practical difference between the ability of the Statutory Procedure and the Informal Approach to influence an Employment Tribunal’s overall decision on a discrimination claim. This means that employers remain faced with a choice of engaging and responding to lengthy questionnaires or run the risk of an Employment Tribunal being persuaded to consider any response (or lack thereof) when making such a decision. The presence of this risk means that employers will often consider that they have no choice but to respond to such a questionnaire even if the administrative and financial burden of having to do so is high. The result? Clearly the process is not ‘fairer for all’.
This bulletin should not be taken as definitive legal advice on any of the subjects covered.