When an employee fears that he may have been discriminated against by his employer, proving this can be an extremely daunting prospect: realistically, what employer will readily admit to discrimination when challenged?. The employee will have to decide whether to institute proceedings on the basis of an act/omission of his employer. To assist employees assess whether or not such an act or omission was founded on unlawful discrimination, the law provides for a questionnaire process whereby the person aggrieved may question his employer on the reasons for such act or omission, together with any other relevant issues. Such questionnaires take a prescribed form, however are tailored to the particular circumstances of the case.
A complainant can deliver a questionnaire to his employer by virtue of:-
- s.74(1) of the Sex Discrimination Act 1975;
- s.65(1) of the Race Relations Act 1976;
- s.7B of the Equal Pay Act 1970;
- Schedule 3 of the Employment Equality (Age) Regulations 2006;
- Schedule 3 of the Employment Equality (Religion or Belief) Regulations 2003; and
- Schedule 2 of the Employment Equality (Sexual Orientation) Regulations 2003.
The questionnaire is intended to help people who believe they may have grounds to launch a claim for unlawful discrimination. Employees can use the questionnaire process to request information from their employers, who are obliged to provide appropriate answers. The responses will enable the employee to decide whether or not to institute proceedings and, if so, how to present his case.
If the employee decides to take a case to an Employment Tribunal, the response should enable the complaint to be presented in the most efficient way and the case should be far simpler because the issues in dispute have been identified in advance.
The focus of an equal pay questionnaire is on establishing whether an individual is receiving less pay and whether the employer agrees that the people being compared are doing equal work. Alternatively in discrimination cases, the questionnaire will assist in determining whether an employee has been treated less favourably than other employees on grounds of sex, religion, race etc.
The questionnaire generally includes:
- a statement of why the individual thinks they are being treated less favourably, followed by a statement about the circumstances leading to that treatment;
- factual questions to ascertain whether they are being, or have been, treated less favourably than their comparator (another actual or hypothetical employee) and, if so, the reasons why;
- space for the employees own questions.
An equal pay questionnaire will also usually contain a small number of standard questions. These are: whether the complainant has received less pay than their comparator(s) and, if so, why; and a question on whether the employer agrees that the people being compared are doing equal work or work of equal value.
The questionnaire must be served within three months of the act/omission complained and before the expiration of 21 days from the date that Tribunal proceedings are issued. Later service may be possible, but only with leave of the Employment Tribunal.
Employers have 8 weeks within which to respond to a questionnaire for discrimination on grounds of gender, sexual orientation, religion and belief, age, race, ethnic or national origins. For discrimination on grounds of colour or nationality, employers are given a ‘reasonable period’ to respond. There is no statutory obligation on an employer to answer a questionnaire but an Employment Tribunal will be entitled to draw whatever inferences it considers appropriate from a failure to answer within the time allowed or from evasive or equivocal replies.
What if the employer is asked to disclose confidential information?
Employers are expected to answer the questionnaire as fully as possible. The existence of a questionnaire does not exempt the employer from the duties imposed on him by, e.g. the Data Protection Act 1998 in respect of confidential personal information concerning his employees, including salary details. The complainant might ask for exact details of a colleague’s pay package or appraisal review. If the information is confidential and that colleague does not want it to be disclosed, the employer will need to consider how much information can be given.
In some cases employers may not feel able to disclose specific information that they believe is confidential. If the case proceeds to a tribunal, tribunals may order disclosure of relevant information if they believe it is in the interests of justice to do so.
The Government believes this balances the rights of people who believe they are not receiving equal pay with the rights of individual colleagues who want their pay rates to remain private.
It is likely that in many cases employers will be able to answer detailed questions in general terms whilst still preserving the anonymity and confidence of their workers. But, nevertheless, it puts a degree of pressure on the employer to provide accurate information on pay, since non-compliance to an inquiry contained in a questionnaire is something from which a tribunal may draw an adverse inference.