goodbye to the statutory questionnaires – thank goodness!

Section 66 of the Enterprise and Regulatory Reform Act will repeal the statutory discrimination questionnaire procedure from 6 April 2014 and in advance of this, ACAS has published guidance about asking and responding to questions relating to workplace discrimination after the abolition of the statutory procedure. The guidance is non statutory and is not binding on tribunals. Together with tips on how to ask and respond to questions, the guidance sets out a template to help organise them.
For employers, the abolition of the statutory procedure will be a considerable relief. Many employees tactically used the procedure to make prying enquiries into how the employer ran the business in order to embarrass the employer into caving in and stumping up compensation to avoid time and expense in answering wide reaching enquiries and the public airing of private decisions in tribunal. Indeed, the compilation of difficult questions for employers, including statistics about the make up of the workforce and history of claims and complaints, had become something of an art form for some claimant lawyers. Many employers were daunted by enquiries which would take literally hundreds of hours of work to comply with.
Of course, employees will still be able to put questions concerning their treatment to employers and the ACAS guidance will help them do this. In any event, they can simply ask for information, sometimes as part of a grievance or disciplinary process. They can also use other means of extracting information such as making subject access data requests for personal data under the Data Protection Act 1998. This latter option has become very popular in the last few years and many employers have caved in to complying with very wide ranging requests and possible resulting settlements of claims when there was really no need. There is a tension between differing interpretations of what employers are required to provide by way of disclosure in connection with tribunal proceedings and disclosure under the Data Protection Act. Indeed the Information Commissioner has suggested that disclosure should be provided even when that exceeds the requirement in connection with the proceedings.
Last August I provided guidance on how to deal with subject access requests

how to deal with subject access requests

On 8 August 2013 the Information Commissioner’s Office published a new Subject Access Code of Practice. The 58 page guide offers a great deal of practical information concerning how to deal with requests.

It is comprehensive and commendably straightforward and, as such, it’s essential reading and reference for anyone who has to deal with subject access requests.

Introducing the Code the Information Commissioner, Christopher Graham, said:
We are all being asked to provide organisations with more and more information about ourselves and subject access requests are a useful tool for keeping control of our data. They can be particularly important when checking your credit rating or applying for a loan, but the ICO’s complaints figures show that many organisations still need to improve their processes for dealing with these requests.
Handling subject access requests correctly can also benefit organisations by highlighting errors and helping them to make sure the information they are using is accurate and up-to-date
Our new subject access code of practice will help organisations deal with these types of requests in a timely and efficient manner, allowing them to demonstrate that they are looking after their customers’ data and being open and transparent about the information they collect. This can only be a good thing for organisations and consumers.
The Code attempts to tackle the thorny question of whether there is an obligation to comply with a subject access request when the person making the request is contemplating or has already commenced legal proceedings. My view, based on my experience of the rules concerning disclosure of documents in civil proceedings is that making such a request with the express purpose of securing “back door disclosure” is an obvious and plainly unacceptable abuse of the process. Why have court rules concerning disclosure if they can effectively be disregarded by utilising the subject access procedure?
Unsurprisingly the Information Commissioner disagrees.