Asking questions about suspected discrimination

The long-established statutory discrimination questionnaire procedure was abolished in April 2014. The procedure gave potential claimants a formal window in which to ask their employer structured written questions before deciding whether to bring a claim. The tribunal had a statutory power to draw adverse inferences of discrimination from evasive or inaccurate responses.

This statutory procedure was replaced by informal Acas Guidance, Asking and responding to questions of discrimination in the workplace. It includes a template encouraging potential claimants to keep questions relevant and not excessive. Inconsistent or poor answers can be taken into account by the tribunal, but the formal statutory power to draw inferences of discrimination has been abolished.

Tribunals expect all claimants, including unrepresented ones, to make their own case before the tribunal, by proving the facts from which discrimination could be inferred (Royal Mail Group Limited v Efobi [2019] EWCA Civ 18). Without this evidence, the claim is likely to fail.