Another of the measures on which the government is consulting (until 7 August) is its plan to abolish statutory discrimination questionnaires. The questionnaires themselves can be found on the EHRC website. The idea behind them is that a worker, contemplating a Tribunal claim, can ask the employer questions designed to establish whether the employer has discriminated against them.
EG if the issue is whether the reason a manager treated worker badly was because of her race, the worker can ask how many grievances there have been against that manager previously and what the racial background was of the workers who complained.
The process is intended to enable both sides to establish, relatively quickly, whether a claim has merits. From time to time, it makes a real difference – I was in a case once where there had been 4 grievances against a manager, all had been brought by black employees, in a small organisation which had only ever employed 5 black people. The fact that both sides could infer from this that the Claimant had a relatively strong case meant that the case was settled relatively quickly and painlessly.
In “the Barton guidelines”, which were approved in Igen v Wong it was said that an evasive or equivocal answer to a statutory discrimination questionnaire can cause the burden of proof to shift, putting the burden on the employer to prove that there was a non-discriminatory reason for an action. In D’Silva v Natfhe, unfortunately, the EAT said that this inference would not always apply – “it is necessary in each case to consider whether in the particular circumstances of that case the failure in question is capable of constituting evidence supporting the inference that the respondent acted discriminatorily in the manner alleged; and if so whether in the light of any explanation supplied it does in fact justify that inference.” In other words, even supporters of the questionnaires have to acknowledge that they have been tending to become something of a dented shield.
That said, there is something especially unfortunate about abolishing the questionnaires at just the same time as the government is introducing a lengthy “cooling off” period for ACAS mediation. It’s pretty obvious that if mediation was intended to do any good, then rather than just sitting on their hands during this period both sides should be using this time to assess the value of the claim – i.e. disclosure should take place during ACAS mediation, and this would be the right time also to have employers completing statutory questionnaires, which would give both sides a better idea of the true prospects of a claim.
The Coalition’s failure to integrate the questionnaire procedure into this ACAS conciliation period is another small sign of how little the government cares about making employment law “work”, and how much of its agenda its driven by the simple desire to recalibrate employment law in favour of employers.