The questions procedure
It is good practice for a worker who thinks that they may have experienced unlawful discrimination, harassment or victimisation under equality law to seek relevant information from you before issuing a formal claim. This can help them to decide if they have a valid claim or not.
How they can do this will depend on whether or not the claim is about events that happened before 6 April 2014.
Claims about events which happened before 6 April 2014
If the claim is about something that happened before 6 April 2014, there is a set procedure which the worker can use to obtain information from you. It includes a set form called ‘the questionnaire’ or ‘questions procedure’ available at:
- The questionnaire form does not need to be used, provided the worker uses the specified questions used in the form.
- If you receive questions from someone, you are not legally required to reply to the request, or to answer the questions, but it may harm your case if you do not.
- The questions and the answers can form part of the evidence in a case brought under the Equality Act 2010.
- A worker can send you the questions before a claim is made to the Employment Tribunal, or at the same time, or after the claim has been sent.
- If it is before, then you must receive the questions within three months of what the worker says was the unlawful discrimination. If a claim has already been made to the Employment Tribunal, then you must receive the questions within 28 days of the claim being sent to the Employment Tribunal.
- If you do not respond to the questions within eight weeks of them being sent to you, the Employment Tribunal can take that into account when making its decision. The Employment Tribunal can also take into account answers which are evasive or unclear.
- There is an exception to this. The court cannot take the failure to answer into account if a person or organisation states that to give an answer could prejudice criminal proceedings and if it is reasonable to claim that it would. Most of the time, breaking equality law only leads to a claim in a civil court. Occasionally, breaking equality law can be punished by the criminal courts. In that situation, the person or organisation may be able to refuse to answer the questions if in answering they might incriminate themselves and if it is reasonable for them not to answer. If you think this might apply to you, you should get legal advice on what to do.
Claims about events which happened on or after 6 April 2014
The questions procedure and the questionnaire form were abolished on 6 April 2014. For claims about events which took place on or after that date it will remain good practice for a worker who thinks that they may have experienced unlawful discrimination, harassment or victimisation under equality law to seek relevant information from you before issuing a formal claim.
Acas has produced non-statutory guidance for employers and workers asking and answering questions after 6 April 2014. It is available at //www.acas.org.uk/media/pdf/m/p/Asking-and-responding-to-questions-of-discrimination-in-the-workplace.pdf
That guidance makes it clear that you should treat any such questions seriously and promptly and not ignore them. Any such questions and answers can form part of the evidence in a case brought under the Equality Act 2010.
Whether the claim is about events that happened before 6 April 2014 or on or after that date, you must not treat a worker badly because they have sent you questions about a claim. If you do, it will almost certainly be unlawful victimisation under the Equality Act 2010.
Last Updated: 02 Sep 2014