2. DISCRIMINATION QUESTIONNAIRES HAVE BEEN ABOLISHED
Discrimination questionnaires under the Equality Act 2010 have been abolished and replaced with ACAS guidance.
The questionnaires were issued by employees (or former employees) to employers to gather further information or evidence of potential discrimination. These questionnaires were dreaded by employers as responses had to be provided within eight weeks and they were very time consuming and probing. Failure to provide a response to any of the questions or evasive or equivocal answers could result in a Tribunal drawing an adverse inference.
Please note that the questionnaire procedure still applies to acts of discrimination which took place before 6 April 2014, but not to those occurring on or after that date. As such, you may still be required to respond to a questionnaire after 6 April 2014.
Employees (or former employees) will still be able to ask you questions, however there are no time limits and no set format in which the questions should be asked or responded to. ACAS have issued guidance which is non-binding but sets out good practice.
The content of the ACAS guidance is similar to the questionnaire procedure in that it sets out a six-step guidance for individuals when asking questions and a three-step guidance for employers to follow when responding.
Whilst there is no direct penalty for failure to comply with the guidance, any failure to respond or responding with evasive replies can still be taken into account by Tribunals. It is therefore advisable to provide sufficient information to respond to the questions without jeopardising your legal position if the matter were to result in a Tribunal claim.
In addition to the process set out within the ACAS guidance, Tribunals can make an order for the employer to provide information.
Employers should be cautious as an employee can now ask questions in any format, at any time. One potential issue is that, without the statutory questionnaire form, employees may be less likely to confine their questions to matters that are relevant to the alleged discrimination. If you are in any doubt, please ask a member of the Employment Team.