An employee or job applicant who thinks that they might have been discriminated against can submit questions to the employer to help determine whether they have a claim. This page sets out when and why you might ask your employer to answer written questions to establish a claim for discrimination.
Prior to 2014 there was a statutory questionnaire procedure for obtaining information from respondents in discrimination claims. Workers were able to serve a standard form on their employers, asking questions about discrimination. Employers were under no obligation to reply, but a Tribunal could draw an inference of discrimination if they failed to do so.
The statutory procedure has been abolished, but it is still possible to ask employers questions. Acas has issued guidance on how this can be done.
We also have a questionnaire example for discrimination claims.
A questionnaire can be a useful tool to help workers understand whether or not they have sufficient grounds to bring a discrimination claim. They can be used by workers to get information from their employers about their claim (which can be either before they bring a claim, or once it has been issued at an Employment Tribunal). It may be helpful to ask questions to gather evidence about policies and practices in the workplace.
The purpose is to help the worker identify why they have been treated in the way they have and therefore whether they may have been discriminated against. Questions may help establish what type of discrimination they have suffered and evidence to show that there has been discrimination as alleged.
If you are considering bringing a tribunal claim, you may want to submit your questions early in the process, to get an idea of the strength of your claim. However, you can also submit a tribunal claim first and then submit questions to your employer within 28 days of submitting the tribunal claim.
When submitting questions to your employer you should provide the following information:
- Your details and the details of the person/people/organisation that you think discriminated against you
- The protected characteristic or characteristics (see Discrimination, Harassment and Victimisation);
- A description of the treatment (refusal of request for different hours to look after disabled daughter and include specific details e.g. date and time, people involved etc.);
- The type of claim (indirect associative discrimination);
- Why the treatment is discriminatory (while the refusal of your request for altered hours may have been applied to anyone, it put you, and other people in your situation, at a particular disadvantage because of your need to care for a disabled child).
Generally, you should ask questions relevant to the allegations of discrimination rather than ask for documents.
- In respect of every important decision about your situation and how you were treated, ask who made the decision, when and the reasons; who was consulted, when and what were their views.
- Find out the employer’s justification for any refusal to allow flexible working or to offer a particular vacancy.
- Find out details about any identified ‘comparator’, eg a person of a different sex or who is not pregnant who has been treated better in comparable circumstances. For example, if you think you were not promoted because of your pregnancy, ask about the qualifications and experience of the person who was promoted and whether they were pregnant.
- When it was decided (and by whom) that redundancies were needed.
- Find out how the employer treats women generally if they are pregnant or have childcare or want to work flexibly, for example by asking how many women have not returned from maternity leave. Note, however, that if the employer can show all women have returned, this may be unhelpful to the your case. It is also difficult to disprove unless you are aware of incidents when women have not returned and the reason is a discriminatory one.
- Find out statistics on how the employer generally treats women compared with men or part-timers compared with full-timers, eg in relation to recruitment, promotion, dismissal.
- If available, find out statistics relevant to your protected characteristic (e.g. on how the employer generally treats women compared with men or part-timers compared with full-timers, in relation to recruitment, promotion, dismissal).
You may find it helpful to look at an example of a completed questionnaire.
You can deliver the questionnaire to your employer via letter, email or by hand. You should make it clear to your employer, on the document and when delivering, that the questionnaire will require action by them. Ask the employer to respond in a reasonable time frame – depending on the type and amount of information you have requested. One week may be insufficient, but eight weeks would usually be plenty of time for a response. You may also want to include an address / email address for your employer to send their response to.
Your employer must not treat you badly or unfairly for asking these questions, If they do so, this could give rise to a claim of victimisation under the Equality Act 2010.
What happens if the employer doesn’t respond?
If you are serving a questionnaire to decide whether to bring a claim, don’t forget that the time limits are running – you need to start a discrimination claim in three months less one day from the act of discrimination.
Ideally, the Respondent will reply as soon as practicably possible. The issue at hand may be resolved in discussions between yourself and the Respondent or with the assistance of Acas during the early conciliation process, prior to making a claim to the Tribunal.
The Respondent is not under a legal obligation to answer questions. However if the Respondent fails to reply to questions or replies evasively, a Tribunal can still take this into account when making a decision in a discrimination claim. In practice, many Respondents do reply, at least partially, as they fear their silence might be misinterpreted.
A Tribunal also has the power to order that questions be answered as part of legal proceedings.
In some cases there are other ways of obtaining replies to questions, such as making requests under the General Data Protection Act Regulations and the Freedom of Information Act 2000 (the subject access request procedure), which is often a very powerful tool.
If you have further questions and would like to contact our advice team please use our advice contact form below or call us.