I have just received a discrimination questionnaire from one of my female employees, who has previously complained about not getting a promotion ahead of a male colleague. How do I deal with it properly?
A person who believes that he or she has been subject to a contravention of equality legislation has the statutory right to ask questions of the person whom he or she believes was responsible for the contravention. The legislative framework surrounding discrimination questionnaires has undergone significant change as a result of the Equality Act 2010 coming into force last year. There are new forms for discrimination questionnaires and for responses from recipients.
Rather like being read your rights, anything you don't say and may later rely on in court could harm your defence. You have eight weeks to reply to the questionnaire, and it is essential that you give as full and consistent a response as you can. Your responses are admissible as evidence in proceedings under the Equality Act and a tribunal or court can draw an inference from a failure to respond to a question or from an evasive or equivocal response.
It is, therefore, imperative that you take the time to prepare a detailed response to the questionnaire and seek legal advice as and when required. Legislation provides that a discrimination questionnaire must be served either before tribunal proceedings are started, or within 28 days of commencement of proceedings. If you have not received a claim from her yet, you can expect one in due course.
Your employee may allege that her male colleague obtained a promotion over her because she is a woman, and argue that she is better qualified for the promoted position than he is. As such, you should provide:
- details of the selection process you employed in determining who would be promoted;
- statistics (if available) about the gender balance with respect to the promoted position across the organisation; and
- an explanation as to the reasons for promoting the male colleague over the female employee.
This is an opportunity to explain to the employee the reasons for her non-selection and to make clear that the selection of the male colleague was completely unconnected to gender. You should also specify, as far as possible, the attributes that their successful colleague had which made them more suitable for the promoted position.
Paras Gorasia, barrister at Kings Chambers, Manchester and Leeds