Case of the week: answering a discrimination questionnaire

Dr C D’Silva v NATFHE (now known as University and College Union) and Others, Employment Appeal Tribunal

Failure by an employer to reply to a Race Discrimination Act 1976 questionnaire will not result in a tribunal drawing an adverse inference unless, on the facts, the failure supports the specific acts of discrimination alleged by the claimant.

FACTS Mr D’Silva is of Indian origin. He had been a lecturer at Manchester Metropolitan University since 1993, and a member of the National Association of Teachers in Further and Higher Education (NATFHE) since 1994. NATFHE provides its members with legal advice and representation where employment disputes arise but it reserves the right to withdraw this support at any time on a review of the facts and/or the merits of a case and/or a failure to co-operate by the member.

D’Silva brought a race claim against the University. NATFHE offered assistance, but after the union’s head of legal, had given pessimistic advice on the merits of the claim, the offer of assistance was reduced. D’Silva instructed his own lawyers and in November 2003 the claim settled. NATFHE refused to contribute towards his costs.

Shortly afterwards, D’Silva asked NATFHE for legal support to issue a new set of proceedings against the university. The union and D’Silva sought to agree on a barrister to advise on the merits of the new claim, which would dictate the level of legal support to be provided. In the meantime, D’Silva commenced the proceedings himself.

A barrister was agreed, and he concluded that D’Silva’s prospects of success were less than 50%. D’Silva challenged this decision, alleged bad faith and requested a second barrister’s opinion, which NATFHE declined. However, it offered to support D’Silva on a number of conditions, but, as a result of the “lack of trust and confidence between us”, D’Silva insisted that NATFHE offer a barrister of his choice.

NATFHE treated this as a refusal of the offer of assistance and confirmed it would not be supporting the claim. D’Silva brought fresh proceedings claiming that NATFHE had discriminated against him. As part of this process he submitted a Race Discrimination Act 1976 questionnaire, in which he requested data relevant to the claim and details of if and how such data is maintained and obtained by NATFHE. The tribunal dismissed the claim, and D’Silva appealed to the Employment Appeal Tribunal (EAT).

DECISION The EAT dismissed the appeal, and in doing so assessed whether or not the tribunal had failed to consider whether it should draw inferences of discrimination from NATFHE’s alleged failure to answer D’Silva’s race relations questionnaire.

The EAT commented that: where there had been failures in answering a questionnaire or otherwise providing information or documents, the presumption of discrimination should not be automatic and, instead, such inferences should only be drawn in “appropriate cases”, and not as a “tick-box exercise”.

The EAT explained that it is necessary to consider whether a specific failure, “however reprehensible”, is capable of constituting evidence supporting the inference that the respondent acted discriminatorily in the manner alleged. This will depend on the factual circumstances and any explanation supplied for that failure.

KEY IMPLICATIONS A failure or partial failure to reply to any form of discrimination questionnaire will not automatically result in a presumption of discrimination. Instead, the employer will be given an opportunity to explain any failure or evasiveness, and the tribunal may accept that the presumption would not be appropriate on those particular facts.

But this will still be the exception, because in the absence of complete clarity, it will still be reasonable to draw an adverse inference from an employer’s bad handling of a discrimination questionnaire or any other request for information. So employers must continue to deal with information requests properly and within the statutory timeframes.

Mark Hucks, associate, Addleshaw Goddard

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