The questions procedure
If you think you may have experienced unlawful discrimination, harassment or victimisation it is good practice to seek relevant information from your employer before issuing a formal claim. This can help you to decide if you have a valid claim or not.
How you 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 you can use to obtain information from your employer. It includes a set form called “the questionnaire” or “questions procedure” available at: https://www.gov.uk/government/publications/discrimination-and-other-prohibited-conduct-complaints-qquestionnaire
You do not have to use the questionnaire form so long as you use the specified questions used in the form.
Your employer is not legally required to reply to the request, or to answer the questions, but it may harm their case if they do not.
The questions and the answers can form part of the evidence in a case brought under the Equality Act 2010.
You can send your employer the questions before you make your claim to the Employment Tribunal, or at the same time, or after you have sent your claim.
If it is before, then you must send the questions to your employer so that they receive them within three months of what you believe was the unlawful discrimination.
If you have already sent your claim to the Employment Tribunal, then you must send the questions to your employer so that they receive them within 28 days of the claim being sent to the Employment Tribunal.
If your employer does not respond to the questions within eight weeks of them being sent to them, 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.
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 their employer 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 your employer 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, your employer must not you badly because you have sent them questions about your claim. If they do, it will almost certainly be unlawful victimisation under the Equality Act 2010. You can make a claim to the Employment Tribunal about that.
Last Updated: 18 Dec 2014