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Lyons Davidson’s Employment Department has submitted a response to a recent government consultation on employment law on the subjects of removing the Employment Tribunals power to make wider recommendations in discrimination cases and the procedure for obtaining information.

Employment tribunals and wider recommendations

In discrimination cases, the Equality Act 2010 allows Tribunals to make recommendations to an employer that affect the wider workforce, if the employer has been found to have discriminated. For example, the recommendation could be to amend an equal opportunities policy or provide equality and diversity training to managers.

Previously, Employment Tribunals had been able to make recommendations only in respect of an individual employee: that they be interviewed for a forthcoming vacancy, for example. However, the previous Labour government felt that this was not an effective remedy in the majority of cases; research has shown that as many as 72% of claimants in discrimination cases were no longer working for the respondent by the time of a hearing.

Red tape challenge

The government’s proposal to remove this provision from the statute book is part of its ‘red tape challenge’ to repeal unnecessary legislation. The government cite use of the power on only one occasion.

Lyons Davidson disagrees with the proposition that, because a remedy is infrequently sought, it will never be appropriate. It is not hard to imagine a situation whereby wider recommendations could prove extremely effective at preventing future discrimination by the same employer.

Given the potentially negative impact on equality and diversity – a matter of extreme importance in society – and the fact that the power will only affect employers who have been found to have discriminated, Lyons Davidson have expressed the view that the power to make wider recommendations should be retained.

Equality Act 2010

Under previous equality legislation and the Equality Act 2010, claimants or potential claimants have been afforded the opportunity to ask their employer questions on any matter that might be relevant to their claim or potential claim, using prescribed forms. There is no obligation to respond to the questionnaire, but a tribunal may draw adverse inferences from a failure to respond within the eight week timescale, or an evasive or equivocal response.

The idea behind the questionnaire is that the potential claimant is able to gather information to support their claim and the employer is provided with an opportunity to explain the reason for their actions.

The government proposes to repeal the questionnaire procedure, citing business concerns that the forms are long and technical, and are often used as a ‘fishing exercise’. It notes that parties would retain the right to correspond and ask questions through other means, such as a grievance procedure or correspondence.

Our view is that the procedure, when used properly, is a valuable method for employees to seek and obtain information to help them establish whether they have a claim and, if so, frame that claim appropriately. It also allows employers to provide information to deter potential claims and set out a credible response to an allegation of discrimination at an early stage.

Employment Tribunal claim form

However, we do agree that, in the hands of litigants-in-person or poorly represented claimants, questionnaires can be too long and contain many unnecessary and irrelevant questions. In addition, the current procedure often results in duplication of work, as the same matters will usually be set out in the questionnaire as in the claim form.

The applicable time limits impact on this; an employer has eight weeks to respond to a questionnaire, yet the ordinary time limit for bringing a claim is three months. Therefore, an employee will usually be compelled to issue their claim before they have received or been able to properly consider the response.

We favour the retention of a questionnaire procedure in some form. Conceptually, the procedure is sound and goes hand in hand with encouraging open litigation; however, we agree that it is flawed in practice.

Discrimination cases

Lyons Davidson have proposed a simpler process that avoids duplication of work and does not impose self-defeating time limits. With the government’s plan for early conciliation in mind, we suggest that an optional procedure be available in discrimination cases, whereby an employee can ask questions and request information focused on the issues raised in their claim form with a view to both parties establishing relevant facts, and considering the issues plus the strengths and weaknesses of their respective arguments. Such a process could be overseen by the early conciliation officer, so as to retain proportionality.

Equal pay claim

In the context of equal pay claims, we consider that the procedure is extremely useful. A questionnaire can be used to draw out the relevant information regarding potential comparators and an employer will have the opportunity to provide information to satisfy the employee that they are being paid equally or that there is a “material factor” defence. Time limits are also not such an issue, as the time limit is longer (six months from the end of the contract) and most employees will still be employed.

The government response is eagerly awaited.

For more information on the issues raised in this article or on employment law matters in general, please contact our Leeds Employment team.