The questionnaire procedure and equal pay questionnaires

For more than thirty years, discrimination law has included a “Questionnaire procedure”, allowing individuals to ask questions of the employer to help them decide whether or not to bring a claim, including questions about pay. The procedure recognised that it is often very difficult for a worker to prove less favourable treatment, and the procedure was aimed at redressing the balance. Failure to reply to a questionnaire, or inadequate answers, allowed a tribunal to draw adverse inferences, including an inference that discrimination did take place, if appropriate.

This right, contained in section 138 EA 10, is to be removed under section 58 of the Enterprise and Regulatory Reform Act 2013 despite 83% of respondents to the government’s consultation not being in support of this proposal. The implementation date for this change is not yet known.

Reps should note that regardless of this change, there is nothing to stop a claimant asking questions of the employer before deciding whether to issue tribunal proceedings and a tribunal could still draw adverse inferences from a refusal to answer or from evasive answers to those questions.

Helpfully, the ECJ has ruled that members states must ensure that any refusal by an employer to disclose information to workers does not compromise the objectives of the Equal Treatment Directive. Furthermore, an employer’s refusal to provide relevant information on request can be taken into account by a tribunal when deciding whether the claimant has established enough facts to raise an inference of discrimination (Meister v Speech Design Carrier Systems GmbH (Case C-415/10).