It has now been confirmed that the statutory discrimination questionnaire regime is being abolished in respect of any alleged acts of discrimination that occur on or after 6 April 2014.
Under the discrimination questionnaire regime, claimants to the Employment Tribunal could serve a questionnaire on a respondent to seek information which might assist in establishing the scope and strength of their claims. Tribunals could draw adverse inferences from a respondent’s failure to reply, or from evasive or equivocal answers.
The loss of the questionnaire procedure represents the removal from a claimant’s armoury of a significant tactical weapon in helping to establish a discrimination claim. It is intended that claimants will still be able to ask questions of respondents on an informal basis, and the government takes the view that avoiding answering or providing evasive or equivocal answers to these questions can still enable a tribunal to draw adverse inferences. However, there will now be no statutory underpinning of such a process.
Responding to questionnaires can be time consuming and potentially prejudicial to respondents at an early stage of a case, so one can perhaps see this change as part of the government’s commitment to reduce regulatory burdens on businesses. It is probably also fair to say that questionnaires did not do a great deal to promote the early settlement of claims which is now very clearly the direction of travel for new employment legislation. Whether justice is better served by their removal remains to be seen.