On 6 April a long standing feature of the law prohibiting discrimination at work will change, when discrimination questionnaires are ‘abolished’. Questionnaires were first introduced in 1975 under the Sex Discrimination Act. Thus for nearly 40 years they have been a thorn in the flesh or a tool in the armoury of employment disputants, depending on which side they are on. They can be a means by which employees gain from their employers access to documents, statistical data, workplace policies and procedures or information about how comparators have been paid or treated.
The measure is being introduced as part of the Government’s efforts to reduce the ‘red-tape’ burden on employers and the intention is therefore, in principle at least, that employers will not have to spend time (and potentially legal fees) responding to questions imposed by employees who wish to establish whether or not they have been discriminated against. It would seem likely that the reaction of most employers to a change of that nature is likely to be positive and that the intended effect of reducing the time and effort devoted to dealing with employment disputes, will be achieved.
The change is brought about by the repeal of a provision in the Equality Act (the ‘Act’) which states that when an employee has put a question to the employer about a contravention of the Act, an employment tribunal is entitled to infer from a late, equivocal or evasive answer or from a failure to answer the question at all that there might be discrimination. On the face of it, repealing that provision suggests that questions about discrimination can, in future, be safely ignored, or answered in very brief or general terms as the potential adverse consequences of doing so have been removed from the statute book.
But opinion is divided as to how much difference this change will make in practice. There are both positive and negative reasons for an employer to take heed when questions are asked about discrimination. This is recognised in the new guidance from ACAS, applicable from 6 April, which aims to provide a structure for those posing questions and those answering them. The guidance makes the point that a question, well answered, might be just as likely to head off a claim as to encourage one. Statistics do not capture the number of claims that have been avoided by this means in the past. Even if the answer to the question posed suggests that there may be a problem, dealing with it at an early stage is far more likely to lead to an outcome that is satisfactory for both employer and employee than a failure to respond, that then leads to a tribunal claim.
Secondly, recent case law from the Court of Justice of the European Union (CJEU) (Meister v Speech Design Carrier Systems GmbH) suggests that employers might ignore questions about discrimination at their peril. In that case, the CJEU decided that an employer’s failure to provide information about how a recruitment decision was arrived at could be taken into account by a Tribunal considering whether there had been discrimination.
Thirdly, an employer who reacts badly to a question about potential discrimination from a job applicant or employee and takes steps that could be detrimental to the individual concerned, is at risk of a claim of victimisation under the Equality Act.
So the end of discrimination questionnaires is not likely to be the end of the questions about discrimination. Employers might want to stop and think before concluding that after April 2014 questions from aggrieved employees about possible discrimination can be safely, or sensibly, ignored.
*That caution may be particularly apt in light of another of the reforms coming into effect on 6 April – the introduction of penalties for employers in cases presented on or after 6 April 2014. The law is changing to give employment tribunals the power (but not obliging them) to impose penalties on employers of up to £5000 when a case has ‘aggravating features’.
‘Aggravating features’ is not defined, but the Government response to consultation on the proposal suggested that a penalty might follow where ‘the breach involves unreasonable behaviour, for example where there has been negligence or malice involved’. The Explanatory Notes to the Enterprise and Regulatory Reform Act, which introduces the measure, suggest that relevant factors might be size of the employer; the duration of the breach of the employment right; or the behaviour of the employer and of the employee.
If imposed the penalty would be payable to the Government, not to the employee. If the tribunal makes a financial award to the employee then the penalty must be 50 percent of the amount of the award subject to the £5000 maximum. Prompt payment (within 21 days) would entitle the employer to a 50 percent reduction.
It remains to be seen how enthusiastically tribunals embrace this new power, particularly as claimants, who will not benefit from it, might be slow to ask tribunals to exercise it. On the other hand some might use the threat of it to raise the stakes in negotiation. For the time being it represents an additional risk in litigation and another factor an employer will want to weigh in the balance in deciding whether or not to settle a claim.