Final farewell for the Equality Act questionnaire procedure?

6th April 2014 was the date set for the abolition of the statutory questionnaire procedure. Just as a reminder, the government decided to remove the statutory equality questionnaire process as part of its ‘red tape’ consultation; that was despite a whopping 83% of respondents to the consultation being opposed to it.

So what was the questionnaire process and was it even important?
Well, the process has been around since the first equality legislation with the Sex Discrimination Act in 1975, with the most recent being embodied in the Equality Act 2010. It was a process that allowed claimants at an early stage to ask questions about their potential claim to the alleged discriminator. In the right hands it could be a very powerful tool – enabling the claimant to gain significant information at an early stage, often before proceedings were even started. The questionnaire process recognised the difficulties faced by claimants and sought to offer some way in addressing the imbalance by enabling them to secure information that potentially would not be secured through any other route. It also helped to determine whether they had a case or not; early information in many cases encouraged settlement before tribunal or court proceedings were issued. Since the government introduced fees for tribunal claims, the questionnaire procedure had taken on increased significance for claimants.

If a respondent failed to reply to the questionnaire or provided evasive or equivocal replies, the courts and tribunals had the power to draw adverse inferences, which again was a really important tool for the claimant to use.

So what now?
It is clear that the removal of the ‘statutory’ process has not removed the claimant’s ability to ask questions of the potential respondents. Indeed, ACAS has now introduced guidance on how to do this, which appears more detailed than the original statutory guidance. It can be found here (PDF)

It is hard to see how this 26 page booklet helps in any way to reduce the bureaucracy of what was a widely understood and well established procedure like the statutory questionnaire. The 6 step process introduced by this guidance in fact bears a strikingly similar resemblance to the previous process and there is even a template to fill in. To top it all, the guidance emphasises that whilst it is a voluntary rather than statutory process the courts and tribunals may still draw adverse inferences from a refusal to respond or evasive answers –

‘A responder is not under a legal obligation to answer questions. However a tribunal or county/sheriff court may look at whether a responder has answered questions and how they have answered them as a contributory factor in making their overall decision on the questioner’s discrimination claim. A Tribunal or court may also order a responder to provide such information as part of legal proceedings in any event. These are issues a responder would need to weigh up when considering if to reply and what to say.’

So things don’t appear to be that different after all….in fact, having ACAS guidelines is likely to encourage people that would never have used the questionnaire process previously, to do so now. It is likely to be quoted in increasing numbers around our courts and tribunals.

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