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. In essence, any such requests, when blatantly used as an alternative to disclosure within the proceedings, should be politely declined.
So is it likely to be more difficult for employees to establish discrimination without the benefit of the statutory questionnaires? The penalty of an inference being drawn for employers who fail to give answers or who give evasive answers will go in April but this does not mean that tribunals will not rely on such evasion to prefer a claimant’s evidence. The claimant will also have other tools to hand to extract damning evidence and are unlikely to allow this change in the law to let employers off the hook.
