Must an employer respond to employees' questions about alleged discrimination following the repeal of the statutory discrimination questionnaire procedure?
The statutory discrimination questionnaire procedure, under s.138 of the Equality Act 2010, was repealed on 6 April 2014. The procedure remains in force only for the purposes of proceedings that relate to a contravention that occurred before 6 April 2014. Accordingly, employers may still be under a statutory obligation to respond to a questionnaire if the questions relate to alleged discrimination that occurred before that date.
Under the statutory procedure, if an employer failed to respond to a questionnaire within the prescribed time limit, or gave evasive or equivocal answers, an employment tribunal could draw an adverse inference that discrimination had taken place. Following the repeal of the statutory procedure, while there is no specific statutory provision for such an inference to be drawn, it is still likely that a tribunal would expect employers to respond to reasonable requests for information and any failure to do so could potentially influence the tribunal's decision on which evidence to prefer.
Employees and job applicants who believe that they may have been discriminated against can still ask questions of employers about the alleged discriminatory treatment. This could be, for example, through an informal request for information or a data subject access request. Acas has produced non-statutory guidance on Asking and responding to questions of discrimination in the workplace, following the repeal of the statutory procedure.