Goodbye Discrimination Questionnaires! (…I won’t miss you!)

Statutory discrimination questionnaires are being abolished with effect from 6 April 2014.

What are discrimination questionnaires?

The Equality Act permitted a person who thought that he or she had suffered unlawful discrimination to obtain information from his or her employer by means of a specific questionnaire procedure.  These questionnaires were frequently lengthy and required a significant degree of work on the part of the employer in their completion.  An employer required to respond to this questionnaire within a period of eight weeks and an employer’s failure to answer this form of questionnaire allowed an employment tribunal to draw an adverse inference from this at any future hearing.

What is the future for these questionnaires?

On 6 April 2014, section 138 of the Equality Act (which contained provision for these discrimination questionnaires) is being abolished.  It should however be noted that these old discrimination questionnaires will still be available for proceedings that relate to acts of discrimination which took place before 6 April 2014.

Are they being replaced with an alternative procedure? 

ACAS has issued guidance explaining how “informal” questions may still be asked of employers once the statutory discrimination questionnaires have been abolished.  The ACAS guidance is clear that, whilst employers will continue to be under no legal obligation to answer these questions, a tribunal will be able to look at whether (and how) questions have been answered as a contributory factor in making its overall decision in a discrimination claim.

Is this good news for employers?

At first glance, this does appear to be good news for employers. In my experience, an employer responding to a discrimination questionnaire took a significant amount of time to do so and ultimately the employer’s formal response added little to the future determination of discrimination claims at tribunal hearing.  However it remains to be seen the extent to which the ACAS guidance is utilised in the future and the effect which any employer’s response will have to the determination of discrimination claims.

Employers who are faced with either a discrimination questionnaire or the ACAS-suggested “informal” questions should take legal advice as soon as possible so as to limit the potential liability for a successful claim.

Simon Allison 
Partner – Employment Law

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