In April 2014, Discrimination Questionnaires shall be abolished as a result of a change in legislation.
A Discrimination Questionnaire is effectively a list of questions that an employee (or former employee) can send to its employer (or former employer). The questions are designed to obtain information to help the employee decide whether or not they should bring a claim for discrimination against their employer. If the employer fails to answer the Questionnaire or answers the questions evasively or ambiguously, then an adverse inference may be drawn by the Employment Tribunal when deciding on any claim brought for discrimination.
April 2014 Position and the Effect of the Change
The change in law sees the abolition of the Discrimination Questionnaires, which have been used for over 30 years and have now been described as not fit for purpose.
The practical reality is that employees will still have the opportunity to ask questions of their employer to help them to ascertain whether or not there would be any merit in making a claim against their employer for discrimination. The questions simply would not be in the form of a Discrimination Questionnaire.
In the event that an employer fails to answer such questions or answers questions evasively or ambiguously (even after April), there is European case law which says that the Employment Tribunal will still be able to draw an adverse inference when deciding on the outcome of a discrimination claim.
Currently, employers spend a lot of time and costs in gathering information (before a claim has even been made) in order to answer the questions posed in the Discrimination Questionnaire. Employers use this opportunity as a way of nipping the concerns in the bud before a claim is made by collating information and effectively putting forward their case in the answers to the questions. If a claim is still then brought by an employee then the employer may find themselves duplicating their time and costs already spent before the claim was brought.
Whilst the abolition of the Discrimination Questionnaire may be appear to be a welcome change for employers to save the duplication of costs and time, employers should be reminded that an employee will still be entitled to ask questions before bringing a claim, which the employer should answer to avoid an adverse inference being drawn at tribunal.
As there will be no set questionnaire for disgruntled employees / former employees to send to the employer, the employer may be faced with a number of irrelevant and time consuming questions, which could potentially mean spending more money and costs than before.
We are not entirely convinced that there will be any real practical difference. The reality of the situation however shall be seen post-April.