As part of its Red Tape Challenge, the Government is consulting on repealing two further provisions of the Equality Act 2010: the questionnaire procedure and tribunals' powers to make wider recommendations
The questionnaire procedure
Under the Equality Act 2010 (the Act) a person who thinks they might have a discrimination claim can send written questions to the potential respondent (for example, their employer). Although the respondent is not obliged to reply, a tribunal may, draw an adverse inference from the respondent's failure to answer questions within eight weeks or from evasive or equivocal answers, if it considers it just and equitable to do so.
The questions and any answers are admissible in evidence in any subsequent tribunal claim.
There is a standard question and answer form for discrimination and separate forms for equal pay claims, but parties do not have to use the forms, and written questions and answers in any format will be accepted by the tribunal.
The questionnaire procedure has been a feature of discrimination law for over 36 years.
The consultation paper notes that the procedure for obtaining information under the questionnaire procedures was intended to increase pre-hearing settlements but have instead created new burdens and risks for employers.
Tribunal's power to make wider recommendations
Before October 2010, a tribunal's power to make recommendations in discrimination cases was limited to recommending steps the respondent should take to reduce the adverse effect of the discrimination on the claimant.
However, in October 2010, the then Government, noting that in around 70% of discrimination cases the employee had already left employment, decided to widen the power to make recommendations in respect of both the claimant and any other person under the Act.
Despite this, recommendations are not binding and there is no power to increase compensation payable to the claimant in relation to recommendations which only benefit the wider workforce.
The consultation paper seeks views on removing the power to make wider recommendations but leaving in place the power of tribunals to make recommendations that would benefit the claimant.
The Government's view is that removal of these two provisions from the Act will not affect the essential rights of claimants.
The consultation closes on 7 August 2012.
Source: Equality Act wider enforcement