Abolition of Discrimination Questionnaires

On the 6^th April 2014, the Enterprise and Regulatory Reform Act 2013 will repeal section 138 of the Equality Act 2010. Section 138 currently gives employees and ex-employees the statutory right to serve questionnaires upon employers requiring them to respond with certain information which may be used to prove acts of discrimination.

Whilst the repeal forms part of the current government’s commitment to the reduction of red tape in employment law, the discrimination questionnaire was in fact never referred to by any of the respondents to the government consultation on perceived issues with the current system. In fact, a recent survey suggested that 80% of practitioners questioned do not welcome the change.

As those who have completed the response to a questionnaire will know, the process is time consuming and employers are unlikely to miss the burden of this obligation. However, the repeal will leave a rather unsatisfactory gap in legislation, especially from the point of view of the employee.

As a matter of course there is a dearth of evidence available to an employee compared to the employer when looking to prove an allegation of discrimination and the purpose of the questionnaire was to redress this imbalance by obliging the employer to provide certain information. As questionnaires can currently be sent prior to proceedings commencing, they allow a potential claimant to gather key information well in advance of any formal disclosure exercise that will otherwise take place.

This allows a more informed decision on whether to head to tribunal. With the advent of tribunal fees, this consideration has taken on new importance. Additionally, the questionnaire has the potential to focus parties’ minds early and possibly to lead to a settlement; either by an early admission or by clarifying to a claimant that no discrimination has actually occurred.

As questionnaires disappear, the mandatory ACAS conciliation comes into force at the same time. There has been some suggestion that what will be lost to the claimant upon the repeal of the questionnaire will be picked up instead by an ACAS officer when they liaise between the parties at the start of any proceedings.