Government Consultation On Abolishing Discrimination Questionnaires

The government has issued two consultations in which it proposes a raft of reforms to the Equality Act 2010 as part of its "red tape challenge". The most significant of the proposed changes is the abolition of discrimination questionnaires, which have been a feature of discrimination law for over 35 years.

As you will be aware, an individual who thinks they may have a discrimination claim can submit written questions to their employer. Although the employer is not obliged to reply, if the employee subsequently brings a claim, the tribunal may draw an adverse inference from the employer's failure to answer questions within eight weeks, or from evasive or equivocal answers.

Implications of abolishing the questionnaires

The government's proposal is made on the basis that:

questionnaires were "intended to increase pre-hearing settlements and reduce tribunal workloads, but [they haven't] had this effect" questionnaires place an additional burden on employers. It is certainly true that responding to questionnaires can take up significant management time not just in obtaining the information but also the time spent dealing with tactical issues of whether or not to provide certain information. This process also often involves incurring significant legal costs.

Some claimants will undoubtedly seek alternative ways of obtaining the same information. But if a claimant requests the same information in the course of tribunal proceedings, the employer can respond robustly – i.e. refuse to provide the information and assert that it...