Statutory discrimination questionnaires have existed largely in the same form since they were first introduced by section 74 of the Sex Discrimination Act 1975. But change is afoot. Neena Patel, Employment Lawyer and Associate at Fox, examines the detail of the repeal, and the real impact for both employers and employees?

They have developed into a useful tool for individuals who believe they may have been discriminated against or who believe they may have an equal pay claim but need evidence to support their claim. Statutory discrimination questionnaires allow individuals to elicit further information about the allegedly discriminatory conduct of their employers or work colleagues. Under the current legislation, discrimination questionnaires can be served any time before an employment tribunal claim is issued or within 28 days after issue. The employer has eight weeks within which to respond to a questionnaire.

Although employers are not legally obliged to respond to discrimination questionnaires, they are usually encouraged to do so, because a tribunal may draw adverse inferences from a failure to reply, or if the answers are evasive or equivocal. A carefully drafted statutory discrimination questionnaire can ask invasive and potentially embarrassing questions of an employer. For example, it can seek to extract statistics about the employer’s ratio of male to female employees generally and at board level, the racial make-up of its work force and whether complaints of discrimination have been made either against it or members of the senior management team in the past. From an employee’s perspective, the questionnaire helps to address the evidential imbalance that is inherent in most discrimination and equal pay cases where the employer is likely to hold all or most of the information that would tend to support or disprove an allegation of discrimination.

However, responding to discrimination questionnaires can be an expensive, frustrating and time consuming process for employers. The Government estimates that 9,000 to 10,000 businesses complete the questionnaires each year with each questionnaire taking approximately 5 to 6 hours to complete, totalling somewhere between 45,000 and 60,000 employee hours per year. There is also a common perception that discrimination questionnaires are often used as a “fishing expedition” by individuals who do not have any real or reasonable cause for complaint. In May last year, the Government Equalities Office acknowledged employers’ concerns and published a consultation paper which contained proposals to repeal the statutory discrimination questionnaire provisions, now contained in section 138 of the Equality Act 2010. These proposals form part of the Government’s commitment to cut red-tape. The Government has decided to push ahead with the proposed repeal despite opposition from trade unions and equality lobby groups. It has stated that the removal of the statutory discrimination questionnaire provisions will not prevent individuals from seeking pre-claim information about potential allegations of discrimination through a more informal route.

So, what will be the real impact of the repeal for both employers and employees? Although employers may welcome the Government’s proposals, the benefit is likely to be limited. Employees and their advisers will inevitably seek out more creative and equally burdensome ways to elicit the same information currently obtained through statutory discrimination questionnaires. For example, where parties are already involved in litigation we are likely to see an increase in applications to the tribunal for orders for further information or disclosure. Similarly, there is nothing to prevent employees from submitting informal (non-statutory) questions as a pre-action request and then using their employers’ responses or failure to respond in evidence against them in proceedings. However, in the absence of legislation governing the procedure for obtaining such information, we are likely to see a concurrent increase in satellite litigation surrounding (i) whether an employer is obliged to respond to non-statutory questions; (ii) the time frame which is considered reasonable for an employer respond; and (iii) the extent to which inferences can be drawn by a tribunal in relation to an employer’s failure to respond.