Equality Act Questionnaires - Finally To Go

The government has finally confirmed that it will abolish the statutory discrimination and equal pay questionnaire procedure from 6 April 2014.  This is part of its mission to reduce the burden on business. In its place, Acas has produced non-statutory guidance addressing how individuals should ask questions regarding discrimination and equal pay and how employers should respond.

You may recall that early last year we told you about the Government’s intention to abolish the questionnaires, but at the last minute it decided to hold off on this proposal as there were no clear guidelines on how employees could obtain the necessary information and what employers were obliged to provide. Yes, the acas guidelines are helpful; however there is still a degree of uncertainty.

In the government's view, repealing the statutory questionnaire procedure will not prevent individuals who believe that they have been discriminated against from using other means of obtaining information. The repeal will simply remove the statutory procedural mechanisms, not the scope for establishing facts about whether discrimination has occurred.

The government is clear that an individual will still be able to ask an employer about a situation where he thinks he has suffered discrimination.

Once the statutory mechanism has been repealed, employers may wonder if they can ignore requests for information.  The key reason why organisations typically respond to a questionnaire is to avoid an adverse inference being drawn in a subsequent discrimination claim. However, repealing the current legal requirement to comply with the request will not necessarily give employers a "get out of jail free" card if they ignore a request for information after 6 April 2014.

EU case law suggests that, although employers do not need to disclose information to an individual, domestic courts may take a refusal to do so into account as part of the wider factual matrix when determining a subsequent discrimination claim.  In short, employers will still need to provide basic information, but there are no set time-frames to adhere to and the level of detail provided is likely to be less burdensome.

Posted on 03/18/2014 by Ortolan

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