The statutory discrimination questionnaires were abolished with effect from 6th April 2014 and replaced with non-binding, ‘good practice’ guidance on how employers should continue to deal with questions from employees regarding discrimination in the workplace.
The previous statutory questionnaires have for many years been a very helpful tool by which an employee can formally request information regarding say a potentially discriminatory pay practice in the workplace (such as paying women less than men) in order to assess whether the pay practice can be successfully challenged. The process involved a standard document which was quite simple for an employee to complete and allowed a series of questions to be asked of an employer, with a deadline to respond of 8 weeks. Where a discrimination claim was subsequently brought in an Employment Tribunal (ET) and the employer had previously failed to respond to such a questionnaire (in full or in part), the ET was able to draw an adverse inference from that failure. That might place the burden of proof onto the employer to disprove discrimination. Thus, the questionnaire was seen by employers as having teeth that bit.
Many employers’ lawyers have commented on the new process and pointed out its informality and the perception that it is less risky for employers; therefore more likely to be ignored by them.
From an employee’s perspective the good news is that this may be a grave mistake – this is because the Court of Justice of the European Union has previously ruled (Meister v Speech Design Carrier Systems GmbH) that a refusal by an employer to provide a response to such questions (or a full response) can be one of the factors for an ET to take into account when deciding whether there are facts from which discrimination could be inferred and which might therefore again shift the burden of proof onto the employer to disprove discrimination.
In light of this, it is arguable that little of substance has changed and that an employer would still be ill-advised to ignore questions lodged by an employee by way of the new more informal process.