The End of Statutory Discrimination Questionnaires

Statutory discrimination questionnaires have existed largely in the same form since they were first introduced by section 74 of the Sex Discrimination Act 1975. They have developed into a useful tool for individuals who believe they may have been discriminated against or who believe they may have an equal pay claim but need evidence to support their claim. Statutory discrimination questionnaires allow individuals to elicit further information about the allegedly discriminatory conduct of their employers or work colleagues. Under the current legislation, discrimination questionnaires can be served any time before an employment tribunal claim is issued or within 28 days after issue. The employer has eight weeks within which to respond to a questionnaire.

Although employers are not legally obliged to respond to discrimination questionnaires, they are usually encouraged to do so because a tribunal may draw adverse inferences from a failure to reply or if the answers are evasive or equivocal.

A carefully drafted statutory discrimination questionnaire can ask invasive and potentially embarrassing questions of an employer. For example, it can seek to extract statistics about the employer’s ratio of male to female employees generally and at board level, the racial make-up of its work force and whether complaints of discrimination have been made either against it or members of the senior management team in the past. From an employee’s perspective, the questionnaire helps to address the evidential imbalance that is inherent in most discrimination and equal pay cases where the employer is likely to hold all or most of the information that would tend to support or disprove an allegation of discrimination. However, responding to discrimination questionnaires can be an expensive, frustrating and time consuming process for employers. The Government estimates that 9,000 to 10,000 businesses complete the questionnaires each year with each questionnaire taking approximately 5 to 6 hours to complete, totalling somewhere between 45,000 and 60,000 employee hours per year. There is also a common perception that discrimination questionnaires are often used as a “fishing expedition” by individuals who do not have any real or reasonable cause for complaint.

In May last year, the Government Equalities Office acknowledged employers’ concerns and published a consultation paper which contained proposals to repeal the statutory discrimination questionnaire provisions, now contained in section 138 of the Equality Act 2010. These proposals form part of the Government’s commitment to cut red-tape for small businesses. The Government has decided to push ahead with the proposed repeal despite opposition from trade unions and equality lobby groups. It has stated that the removal of the statutory discrimination questionnaire provisions will not prevent individuals from seeking pre-claim information about potential allegations of discrimination through a more informal route.

So, what will be the real impact of the repeal for both employers and employees?
Although employers may welcome the Government’s proposals, the benefit is likely to be limited. Employees and their advisers will inevitably seek out more creative and equally burdensome ways to elicit the same information currently obtained through statutory discrimination questionnaires. For example, where parties are already involved in litigation we are likely to see an increase in applications to the tribunal for orders for further information or disclosure. Similarly, there is nothing to prevent employees from submitting informal (non-statutory) questions as a pre-action request and then using their employers’ responses or failure to respond in evidence against them in proceedings. However, in the absence of legislation governing the procedure for obtaining such information, we are likely to see a concurrent increase in satellite litigation surrounding (i) whether an employer is obliged to respond to non-statutory questions; (ii) the time frame which is considered reasonable for an employer respond; and (iii) the extent to which inferences can be drawn by a tribunal in relation to an employer’s failure to respond.

We may also see an increase in the use of data subject access requests being made by employees under section 7 of the Data Protection Act 1998. The data subject access request is a means of extracting personal data held about the employee and is also often used as a tactical tool to encourage employers to offer a higher settlement package. Data subject access requests are relatively easy and inexpensive to make but can be time consuming and burdensome for employers to respond to.

The repeal of the statutory discrimination questionnaire provisions was expected to come into force in March 2013. However, as at the date of writing this article the Government had still not published a firm date for when the repeal will come into effect. Therefore the provisions relating to statutory discrimination questionnaires remain in force for the time being, but for how long we have yet to see.

Neena Patel specialises in Employment Law and is an associate at Fox, Solicitors based in the City of London: www.foxlawyers.com

Neena Patel joined Fox in June 2010 and specialises in employment and partnership law. She advises companies, LLPs, professional partnerships, senior executives and partners on a variety of issues including commercially sensitive senior level appointments and departures. Her experience includes drafting and advising on various types of employment and partnership documentation including service agreements, staff policies and procedures, compromise agreements, retirement deeds and LLP and partnership agreements. Neena also has experience in advising on redundancy exercises, sex and disability discrimination litigation in the employment tribunal and providing strategic and tactical advice in team move scenarios and partnership disputes, including advice on issues such as restrictive covenants and fiduciary obligations.

Neena is a member of the Employment Lawyers’ Association and regularly attends seminars and training events.
Fox are a boutique law firm based in the City of London, specialising in contentious employment and partnership issues swiftly and effectively.