“We do not see why it should be a function of government to try and micro-manage this interaction between the parties through the prescribing of template forms and time limits.”: government response to the consultation on abolition of discrimination questionnaires.

On 6 Apri,l 2014, statutory discrimination questionnaires were abolished. For 30 years, discrimination questionnaires provided a statutory mechanism for individuals who believed they had suffered discrimination at the hands of employers to question the alleged discriminators by demanding information from them in the hope of establishing the existence of discriminatory treatment. Given that it is extremely difficult for claimants to prove the existence of discrimination, the arguments in favour of retaining a questionnaire which helps employees gather facts to ascertain if they have a case of discrimination are compelling. However, employers have complained that claimants have used questionnaires to ask employers to provide statistics and analysis they are not generally required to provide during a tribunal disclosure exercise. Worse still, say some employers, employees used discrimination questionnaires for the sole purpose of frustrating their employer, requiring them to focus time, expense and effort on obtaining the information requested. Employers who failed to respond, or provided evasive answers, were at the mercy of the employment tribunals who could draw adverse inferences from their behaviour.

 

Acas has produced non-binding guidance for employees and employers to fill the void left by the abolition of discrimination questionnaires. The guidance makes it clear that in the absence of a prescribed form employees can continue to ask employers questions about alleged discrimination and that employers should respond. Acas emphasises the need for employers to treat requests seriously and to deal with them promptly and always to attempt to resolve disputes at the outset. In all cases the onus is on the employer to clarify the purpose of a question if it is unclear. Employers would be wise to follow the Acas guidance because case law makes it clear that tribunals can take into account the refusal by an employer to disclose information to an employee.

 

The burden on employers has eased slightly. However, it remains the case that, even in the absence of a statutory process, employees can ask questions of their employer and tribunals are still entitled to draw adverse inferences from the employer’s failure to properly respond.

 

Double whammy for losing employers

 

An employer that loses its case in the employment tribunal is now faced with the prospect of being ordered to pay not only compensation to the claimant but also a financial penalty to the Exchequer. A tribunal can impose a financial penalty on an employer who commits a breach of employees’ rights which has “one or more aggravating features”. The amount of the financial penalty, which must not be less than £100 and not more than £5,000, will be 50% of the amount of any compensation awarded to the employee. In order to encourage speedy payments by employers, those who pay the penalty within 21 days need only pay half.

 

The Government’s case for enacting this change is persuasive - it is hoped that employers will be less likely to breach employees’ statutory rights in the knowledge that, if they do, they will be required to pay a fine. Employers and employees alike will ask, however, why the Government and not the claimant will profit from an employer’s breach. Critics also point out that the legislation does not define “aggravating features” and so it is still unclear in what circumstances a tribunal will order an employer to pay a financial penalty, although one suspects tribunals will only impose penalties on employers guilty of unreasonable behaviour, for example, malice.

 

Paul Mander

Photo: Paul Mander 

Paul is Head of Penningtons Manches’ employment law team. He advises on a broad range of contentious and non-contentious employment and partnership matters and is recognised in particular for his expertise in restrictive covenant and injunction issues. Paul is experienced in all forms of employment litigation, both in the High Court and tribunals, as well as boardroom disputes, discrimination (in employment and partnership), TUPE matters and outsourcings. He is recognised as a leader in his field by both Chambers Guide to the UK Legal Profession and The Legal 500.