In March 2013, as a step to cut "red tape" in discrimination cases, government will abolish the use of statutory discrimination questionnaires in all discrimination cases. Currently, a claimant who believes he or she has been discriminated against can ask the employer to reply to questions and requests for disclosure set out in a discrimination questionnaire. A failure by the employer to provide a reply can permit an adverse inference being drawn against the employer by the tribunal at a full hearing.
These changes are being introduced by the Enterprise and Regulatory Reform Bill 2012 and specifically section 138 of the Equality Act 2010 will be repealed.
For both employee and employers dealing with discrimination questionnaires are time consuming and therefore expensive. Originally we thought their abolition was an unwelcome development wrongly being justified as a piece of red tape. Over the last few months, however, we have arrived at the conclusion that the loss of the questionnaires is going to be a genuine cost saving benefit to employers. Recently at an employment tribunal hearing, the judge in open session told Simon Quantrill that in his view discrimination questionnaires proved very little help to the tribunal when determining the merits of a claim. It was clear that this judge was not going to lose sleep about their abolition and nor should you.
It will still be open for the claimant to ask questions and seek voluntary answers. A failure to provide appropriate replies may well mean that the tribunal will take this failure into account under existing and continuing case law discretions and powers. There will also be the ongoing right for both parties to raise further and better particulars and additional questions and to ask for specific disclosure. In practice very little will change.