Employment Update: Discrimination



Failure to reply to a statutory questionnaire is not necessarily discrimination

Giving judgment in the recent case of D'Silva v NATFHE, the EAT has given helpful guidance on the subject of the statutory questionnaire that Claimants in all discrimination claims are allowed to serve on potential respondents to obtain information that might assist them in assessing their claims.

The law states that if the employer ‘omitted to reply within a reasonable period or the reply is evasive or equivocal, the Tribunal may draw any inference from that fact… including an inference that he committed an unlawful act’.

This case concerned an alleged failure by the respondent trade union to support the Claimant in bringing claims against his employer.

The Claimant alleged that the respondent’s failure, in response to a questionnaire, to supply ethnic monitoring information concerning acceptances and refusals under their legal assistance scheme, raised an inference of discrimination.

The EAT disagreed. An alleged failure to answer a questionnaire, however reprehensible, might have no bearing on the reason why the respondent did the act complained of: in this case, failing to support his claim. Each case had to be considered on its own merits.

Point to note:

  • The EAT is right in thinking that there is a tendency for Claimants in discrimination claims to rely on any failure to answer a statutory questionnaire as automatically raising a presumption of discrimination. This case is a timely reminder that this is the wrong approach. However, questionnaires must be still be taken seriously, and answered to the best of the employer’s ability. As the questionnaire and the answers may become central to the claim, legal advice should always be taken before answers are submitted.