An employee, worker, or job applicant who thinks that they might have been discriminated against can submit questions to the employer/end-user of the service they are providing, to help determine whether they have a claim.
This page sets out when and why you might ask an employer/company to answer written questions about a discrimination situation, and gives hints and tips on how to frame your questions, and what topics you might want to cover.
Prior to 2014 there was a statutory questionnaire procedure for obtaining information from respondents in discrimination claims. Workers, or job applicants, were able to serve a standard form questionnaire on 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. The term “questionnaire” simply means written questions in this context.
A questionnaire can be a useful tool to help an individual to understand why the treatment they experienced happened, and to understand whether or not they may have sufficient grounds to bring a discrimination claim.
The purpose is to help the individual 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, if any, and to gather evidence to show that there has been discrimination as alleged. It may be helpful, for example, to ask questions to gather evidence about policies and practices in the workplace.
They can be used by workers, or job applicants, to get information from employers about their claim, or a potential claim.
The questions can be submitted either before they bring a claim, or once it has been issued at an Employment Tribunal.
It can take many months to get to the stage of a Tribunal claim when the parties have to disclose documents to each other, and some claims never reach that stage. For this reason, it can be very helpful to ask questions about a claim/potential claim early on.
If you are considering bringing an Employment Tribunal claim, you may want to submit your questions early in the process, to get an idea of the strength of your claim, or establish how likely you might be to succeed in the Tribunal.
However, you can also submit an Employment Tribunal claim first, and then submit questions to the employer later. You should always bear in mind the very strict Employment Tribunal time limits, and make sure you don’t miss the opportunity to submit a claim “in time” – for more information, see our detailed page on time limits.
When submitting questions to the employer, you should provide the following information:
- Your details (name and address), and the details of the person/people/organisation that you think discriminated against you
- The protected characteristic or characteristics from the Equality Act 2010 that you think was the reason for the unfavourable treatment (or disadvantage) you have experienced. There are nine protected characteristics. You may think that more than one protected characteristic was the reason why you were unfavourably treated, for example race and sex. (For further information, see our detailed advice page on Discrimination, Harassment and Victimisation);
- A brief factual description of the treatment you are complaining about, and, if relevant, the circumstances leading up to that treatment. (For example, this may be the refusal of your request for different hours to look after disabled daughter , or the failure to give you reasonable time off for antenatal appointments. If you can, do include specific details e.g. date and time, the names of people involved etc, so that there is more likelihood that the employer can investigate and answer the questions);
- The type of claim you think you may have. (For example, this may be “indirect associative discrimination”, or “maternity discrimination”);
- Why you believe that the treatment amounts to unlawful discrimination. (For example, while the refusal of your request for altered hours could have been given to any employee, in fact your employer’s refusal put you, and other people who might be in your situation with that protected characteristic (e.g. parents of a disabled child), at a particular disadvantage.
Generally, you should ask questions which are relevant to the allegations of discrimination, rather than asking for documents. (In practice, the questions might lead to you being sent documents).
Examples of things which you may want to ask about include:
- In respect of every important decision about your situation and how you were treated, it may be relevant to ask who made the decision, when and the reasons behind the decision; who was consulted, when, and what were their views.
- Find out the employer’s justification for any refusal to allow flexible working, or (for example in a redundancy situation) to offer a particular vacancy/to select a particular set of redundancy criteria or to select a particular employee from the pool of “at risk” employees.
- Find out details about any potential ‘comparator’, e.g. in the case of a sex or maternity discrimination case, asking about a person of a different sex/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.
- In a redundancy exercise, you could ask 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).
How do I submit my questions?
You can deliver the questionnaire to the employer via letter, email or by hand. It is usually best to send any important correspondence via email, if possible, so that you have a record of exactly what you sent, to whom, and when. If you are using the post, it is best to use recorded delivery, and if you hand something in, it is best to keep a copy, and ask for a receipt, to prove that it was handed it, and who received it at the employer. It may be best to send the questions to the Head of HR, or a senior manager, to make sure that it is seen by someone with authority to take action.
You should make it clear to the employer, on the document and when delivering it, 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 six to eight weeks would usually be plenty of time for a response. You may also want to include an address / email address for the 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 potentially 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 strict Employment Tribunal time limits are running – you need to start a discrimination claim within three months less one day from the act of discrimination. For more information, see our detailed advice page on time limits.
Ideally, the Respondent will reply as soon as practicably possible. The issue at hand may then be resolved in discussions between yourself and the Respondent, or with the assistance of Acas during the early conciliation process, without the need to make a claim to the Tribunal.
If the employer hasn’t acknowledged receipt of your questionnaire, it is often a good idea to follow up and make sure that it has been received.
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. They often also want to put forward their side of the story and try to avoid a claim being brought.
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.
This advice applies in England, Wales and Scotland. If you live in another part of the UK, the law may differ. Please call our helpline for more details. If you are in Northern Ireland you can visit the Labour Relations Agency or call their helpline Workplace Information Service on 03300 555 300.
If you have further questions and would like to contact our advice team please use our advice contact form below or call us.