ACAS Issue “Guidance” on Replacement for Discrimination Questionnaires

ACAS have just issued a document giving guidance. It can be found here

The Government announced last year that they considered the current Questionnaire procedure in discrimination cases a burden on business and proposed abolishing it entirely. This is despite the procedure having been on the statute books in one form or another since the Sex Discrimination Act 1975 and 83% of respondents to the Government Consultation in 2012 opposed repeal.

The current procedure is set out in S.138 of the Equality Act 2010 and the Equality Act 2010 (Obtaining Information) Order 2010. The Government carried out their threat by enacting S.66 of the Enterprise and Regulatory Reform Act 2013 that repeals S.138 of the Equality Act 2010 in relation to all contraventions occurring before the section comes into force. The Government announced that S.66 comes into force with effect from 6th April 2014.

The questionnaire procedure can be used by workers who believe they may have been subjected to discrimination and who are thinking of bringing an employment tribunal claim. The time limit to serve a questionnaire is any time before the commencement of tribunal proceedings or before the end of 28 days beginning on the day on which proceedings are commenced.

This means that if you are contemplating bringing discrimination proceedings you have until the 5th April to serve a questionnaire. Serving a questionnaire does not stop the time limit running. You must issue tribunal proceedings within 3 months less 1 day from the act or last act of discrimination.

The procedure enables a worker to ask the employer any relevant questions which will be useful in finding out why s/he has been treated in a certain way and whether s/he can prove discrimination. There is a standard form that can be used.

The employer is expected to answer the questions in writing within eight weeks. The questions and answers can be used as evidence at the employment tribunal hearing if the case goes ahead. Ambiguous or evasive answers by an employer can be used by the tribunal to draw adverse inferences against the employer when deciding if discrimination has occurred.

Section 138(4) of the Equality Act 2010 states that:

A court or tribunal may draw an inference from –

• (a) a failure by R to answer a question by P before the end of the period of 8 weeks beginning with the day on which the question is served;
• (b) an evasive or equivocal answer

The Questionnaire procedure was a powerful weapon in assisting claimants to bring discrimination claims and it was felt the ACAS Guidance would represent a severe weakening of claimants’ rights. I am not so sure having read the Guidance which is 26 pages long. I suspect some respondents will soon be calling for the reinstatement of the Questionnaire procedure with all its certainties over time limits and inferences.

Repeatedly ACAS refer to the fact someone asking questions in good faith is generally protected under the Equality Act 2010 were they subsequently to suffer victimisation for this action. They also refer to the need to refer any grievance to ACAS for Early Conciliation which is also due to come into force on the 6th April. It will not be possible to lodge a claim in the tribunal without a certificate from ACAS that Early Conciliation has been completed.

The Guidance then sets out a 6-stage procedure for “questioners”

Step 1 – Questioner’s and responder’s details

The questioner should set out their name and address and that of the person or organisation and others who the questioner thinks may have discriminated against them.

Step 2 – Protected characteristic under the Equality Act 2010

The questioner needs to identify which protected characteristic(s) may have been the subject of the unfairness they’ve experienced. There are nine protected characteristics. It may well be that more than one protected characteristic is relevant to the treatment experienced.

Step 3 – Description of treatment

The questioner should set out a brief factual description of the treatment, or lack of treatment, or the failure to make a reasonable adjustment in the case of a disabled person to which the complaint relates and the circumstances leading up to that treatment. The description should aim to give key factual details, such as the date, time, place and number of instances of the treatment [or failure] that are central to the complaint…

Step 4 – Type of discrimination you experienced

To help the responder answer the questions, the questioner needs to identify the type of discrimination they believe might have occurred…

Step 5 – Why do you think your treatment was discriminatory?

This step allows the questioner to set out why they think the treatment or disadvantage described in Step 3 above might be unlawful…

Step 6 – Additional questions about treatment

The questioner can ask any appropriate questions of the responder that they consider might be important to the events they feel have affected them. Many organisations have policies to ensure fair practice in the workplace such as for equality, discipline and grievance, bullying and harassment and questioners might want to ensure they have been treated consistently with them. A questioner can ask for statistical information to show how people with their protected characteristic are treated within the organisation.”

There then follows very detailed guidance on how the questions should be served and how a time limit for a response should be set.

ACAS then turn to how someone should respond. ACAS say

“Questions about potential discrimination at work should be dealt with
seriously and promptly by the responder. The responder should consider
carefully the most appropriate way to respond given the possible implications of any response. If a responder chooses not to answer then a claim may be lodged at Tribunal that may have been avoided by providing clear answers in the first place. Further, a Tribunal may order that the responder provide answers in any event as part of a claim.”

A 3 step process for responding is set out along with the following warning

A responder is not under a legal obligation to answer questions. However a tribunal or county/sheriff court may look at whether a responder has answered questions and how they have answered them as a contributory factor in making their overall decision on the questioner’s discrimination claim. A Tribunal or court may also order a responder to provide such information as part of legal proceedings in any event. These are issues a responder would need to weigh up when considering if to reply and what to say.”

This is not very different from the old Questionnaire procedure as the wording of S.138 (4) used the term “may” with regards to inferences. I think a claimant’s representative could write a “without prejudice as to costs and fees” letter to a reluctant responder threatening to apply for costs/fees (and a financial penalty if they are introduced in April) if the responder refuses to answer the questions. This would be on the basis that it is a breach of the overriding objective and is otherwise unreasonable conduct to refuse to answer the questions forcing the questioner to issue proceedings. I foresee a lot of satellite litigation about this.

It should be noted there is a separate procedure in the Guidance for Equal Pay claims. There is also a very useful template for Questioners.

I think that the ACAS Guidance is going to be quoted extensively in grievance and tribunal proceedings and all union representatives should have a copy with them whenever they are meeting employers about a discrimination case for a member. The Questionnaire procedure was only used sporadically by claimants and their representatives. This ACAS Guidance could provide a boost to making use of Questions in discrimination cases.