The government has issued two consultations in which it proposes a raft of reforms to the Equality Act 2010 as part of its "red tape challenge". The most significant of the proposed changes is the abolition of discrimination questionnaires, which have been a feature of discrimination law for over 35 years.
As you will be aware, an individual who thinks they may have a discrimination claim can submit written questions to their employer. Although the employer is not obliged to reply, if the employee subsequently brings a claim, the tribunal may draw an adverse inference from the employer's failure to answer questions within eight weeks, or from evasive or equivocal answers.
Implications of abolishing the questionnaires
The government's proposal is made on the basis that:
- questionnaires were "intended to increase pre-hearing settlements and reduce tribunal workloads, but [they haven't] had this effect"
- questionnaires place an additional burden on employers.
It is certainly true that responding to questionnaires can take up significant management time not just in obtaining the information but also the time spent dealing with tactical issues of whether or not to provide certain information. This process also often involves incurring significant legal costs.
Some claimants will undoubtedly seek alternative ways of obtaining the same information. But if a claimant requests the same information in the course of tribunal proceedings, the employer can respond robustly – i.e. refuse to provide the information and assert that it will resist any application the claimant makes to the tribunal. Even if the tribunal agrees to an order for further information or disclosure, the employer would be in a better position than when faced with a questionnaire, because there is scope for persuading the tribunal to limit the scope of the order, and when assessing such an application, the tribunal must deal with the case fairly and in ways which are proportionate to the complexity or importance of the issues. Equally, it would save employers and their advisers having to make the tactical call on whether to refuse to respond to very widely-drawn questions in the questionnaire, at the risk of possible adverse influence being drawn: all you would have to do is comply with those requests which are specifically endorsed by the tribunal.
If the government proceeds with this change, and there is likely to be significant and widespread opposition to it, it would of course be welcomed by employers.
The consultations close on 7 August 2012.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.