Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+

Personnel Today

Register
Log in
Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+

Employment lawEquality, diversity and inclusion

Case of the week: answering a discrimination questionnaire

by Personnel Today 21 Apr 2008
by Personnel Today 21 Apr 2008

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

Personnel Today
Personnel Today

Personnel Today articles are written by an expert team of award-winning journalists who have been covering HR and L&D for many years. Some of our content is attributed to "Personnel Today" for a number of reasons, including: when numerous authors are associated with writing or editing a piece; or when the author is unknown (particularly for older articles).

previous post
Weekly dilemma: written warnings
next post
Employers steer clear of potentially pregnant recruits

You may also like

The P&O Ferries sackings one year on

17 Mar 2023

Sexual harassment law: Employers to gain new responsibilities

14 Mar 2023

Managers call for ‘help to hire’ courses for...

10 Mar 2023

EHRC submits criticism of Strikes Bill to parliament

9 Mar 2023

International Women’s Day 2023 puts equity above equality

7 Mar 2023

Government appoints menopause employment champion

7 Mar 2023

UK firms back health and safety rules in...

3 Mar 2023

France rated best overall for gender equality in...

3 Mar 2023

‘Nothing left in the tank’: the special pressures...

3 Mar 2023

Gary Lineker case ‘nothing to do with IR35’...

3 Mar 2023

  • Sodexo Engage – Mountain of lost benefits ebook PROMOTED | Help your people feel the impact of your benefits...Read more
  • Neurodiversity: How to make the workplace more inclusive (webinar) WEBINAR | Can your organisation truly be inclusive...Read more
  • How HR can facilitate internal talent mobility PROMOTED | Should internal talent mobility be a priority...Read more
  • Bereavement in the workplace: How training can help HR get it right PROMOTED | HR professionals play an essential role...Read more
  • UK workforce mental wellbeing needs PROMOTED | The mental wellbeing support employers are providing misses the mark...Read more
  • The Workplace Today Guide: Why it pays to support your staff’s financial health PROMOTED | The cost of living crisis has hit...Read more

Personnel Today Jobs
 

Search Jobs

PERSONNEL TODAY

About us
Contact us
Browse all HR topics
Email newsletters
Content feeds
Cookies policy
Privacy policy
Terms and conditions

JOBS

Personnel Today Jobs
Post a job
Why advertise with us?

EVENTS & PRODUCTS

The Personnel Today Awards
The RAD Awards
Employee Benefits
Forum for Expatriate Management
OHW+
Whatmedia

ADVERTISING & PR

Advertising opportunities
Features list 2023

  • Facebook
  • Twitter
  • Instagram
  • Linkedin


© 2011 - 2023 DVV Media International Ltd

Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+