Discrimination questionnaires: failing to respond does not necessarily lead to a presumption of discrimination

01.01.08

Discrimination questionnaires: failing to respond does not necessarily lead to a presumption of discrimination

In D'Silva v NATFHE the EAT decided that a respondent's failure to answer a statutory discrimination questionnaire fully does not automatically raise a presumption of discrimination. The question is whether, in the circumstances of the case, the failure can support an inference that the respondent committed an act of discrimination.

Background

Each strand of the discrimination legislation enables a claimant to serve a questionnaire about allegedly discriminatory treatment on a respondent. A tribunal cannot require a respondent to reply to a questionnaire. However, it may draw an inference that there has been unlawful discrimination where it appears that:

  • The respondent deliberately and without reasonable cause omitted to reply to a question within the time limit; or
  • The reply to any question is evasive or equivocal.

Facts

Mr D'Silva, who is of Indian origin, was employed as a University lecturer and was a member of NATFHE (the Union). The Union provides its members with legal advice and representation in employment disputes.

In 2002 Mr D'Silva brought a race discrimination claim against the University. The Union advised that his claim had poor prospects so he instructed his own solicitors and compromised his claim in 2003. Later in 2003 he requested legal assistance from the Union regarding further race discrimination proceedings against the University but, after some protracted negotiations, the Union did not support the claim.

Mr D'Silva brought tribunal proceedings against the Union alleging that the Union's failure to support his claim was an act of discrimination. He argued that discrimination could be inferred from the fact that the Union had failed to answer the race discrimination questionnaire fully (by omitting to provide ethnic monitoring information relating to its decisions to provide legal assistance to its members). The Union's position was that it was unable to provide this information as its computer systems did not routinely record it.

EAT decision

The EAT accepted that the Union's computer systems did not record the required information and was of the view that the Union was not required to go through paper files to collate the information. As there was an explanation for the failure to respond fully to the race discrimination questionnaire, there was no presumption of discrimination.

The EAT pointed out that it is clear that in many situations a failure of this kind - however reprehensible - has no bearing on whether or not there has been discrimination.

In practice

This is a helpful case for employers defending discrimination claims and will be particularly helpful where detailed and complicated information is requested via the questionnaire process. However, it remains best practice to deal with discrimination questionnaires promptly and as fully as possible. There should be an explanation for any failure to respond to a particular question. Also, remember that a robust defence in a questionnaire may dissuade a claimant from proceeding.

D'Silva v NATFHE and others UKEAT/0384/07