Responding to discrimination questionnaires

Stephen Britton

25 January 2018

The statutory questionnaire procedure was abolished when the government decided to remove the statutory equality questionnaire process as part of its ‘red tape’ consultation back in 2014.

This process allowed individuals at an early stage to ask questions about their potential claim to the alleged discriminator and it could be a very powerful tool, enabling individuals to gain significant information at an early stage, mainly before tribunal proceedings were even started. And if the employer failed to reply to the questionnaire or provided evasive or equivocal answers, the tribunal had the power to draw adverse inferences.

ACAS introduced guidance on how individuals can still raise questions with their employer, see link below, the guidance emphasises that whilst it is a voluntary rather than statutory process the tribunals may still take them into account from a refusal to respond or evasive answers.

Expert employment solicitor Stephen Britton explains and answers some questions on unfair dismissal as well as reinstatement and re-engagement.

What is the requirement to respond to questions from an ex-employee?

There was a requirement that an employer had to answer questions that were raised by an employee in relation to a discrimination complaint. That requirements have been abolished however there is an ACAS code of practice in relation to answering questions raised by employees, in relation to discrimination complaints. So I would suggest that if an employer receives a list of questions in relation to discrimination complaint, they should certainly take legal advised but they should also look at the ACAS code of practice on how to respond.

The current state of the law is that it's no longer the case that adverse inferences are drawn by the tribunal if you don't answer the questions or if you answer the questions in a way that's unhelpful, but that doesn't mean that an employer should deliberately not answer the questions or deliberately answer the questions in an unhelpful way because the tribunal can still take into account the answers when deciding the outcome of the case, if of course, the answers that are given are relevant to any issue at least to be determined.

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Link to ACAS code of practice: Responding to questions of discrimination in the workplace.


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