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5. The Questionnaire (The Equality Act 2010 - Discrimination and Other Prohibited Conduct – Questions and Answers Forms)

Released 8th May, 2012|8,318 Views

The Questionnaire is usually written on a standard form, Discrimination and Other Prohibited Conduct – Questions and Answers Form, available from the Government Equalities Office. You can download the form and find additional guidance for filling it in on the Government Equalities Office website.

The worker can ask the employer a series of written questions in the Questionnaire. The purpose is to gather evidence to help the worker identify what type of discrimination she or he may have suffered and to gather information and evidence to show that there has been discrimination as alleged.

If the employer fails to answer within 8 weeks, or provides an evasive answer, the tribunal can draw an adverse conclusion at the final hearing.

The time-limit for serving a Questionnaire depends on whether or not the worker has started the tribunal case yet by lodging their tribunal Claim. The Questionnaire can be sent to the employer before the tribunal Claim is lodged, or at the same time, or afterwards.

If the Questionnaire is sent to the employer before the tribunal Claim is lodged or simultaneously, then the time-limit for serving the Questionnaire is the same as for lodging the tribunal Claim, ie 3 months minus one day from the date of discrimination.

However once the tribunal Claim has been lodged, it changes the time-limit for the Questionnaire. The Questionnaire must then be served (ie received by the employer) within 28 days starting on the day the tribunal Claim was lodged at the Employment Tribunal.

However, tactically, it is better if the Questionnaire can be sent to the employer in advance of the tribunal Claim. This gives the worker a chance of getting the reply before the time-limit runs out for starting a Claim. Even if the reply is not received before the Claim is made the reply will still be received at an earlier stage during the running of the case than would otherwise happen.

If the Questionnaire is written before the tribunal Claim, make sure the statement of what has happened (at section 6) is written as carefully as it would be written on the tribunal Claim so that it is accurate and comprehensive. It must also be consistent with the subsequent Claim form. The questions (at section 9) are important and should be drafted precisely to avoid giving the employer a general and unhelpful answer and so as to obtain the most accurate and relevant information possible. 

It is not compulsory to send a Questionnaire, but it is strongly advised. It is usually the most effective way to gather the type of evidence the Claimant will need to win their case. Other procedures can be used when running a case, but they are less effective.

The Questionnaire form

 Drafting tips for completing the Questionnaire form:

  • For section 1, the worker need to complete the details of their employer, “the Respondent”
  • For section 2, the worker needs to complete their details.
  • For section 3, this is where the worker ticks the protected characteristic they are complaining about - if the worker believes they have been discriminated against on the grounds of pregnancy,  they should tick both the 'pregnancy and maternity', and 'sex' boxes, though these can also be argued in the alternative. If in doubt argue both, for example where there has been less favourable treatment on grounds of pregnancy or maternity leave and indirect sex discrimination because of a refusal to allow flexible working.
  • Section 4 requires the worker to state in what way they have been discriminated against.
  • For section 5 the worker can say if they think the Respondent (usually their employer) is responsible for or might have helped someone else treat them unlawfully – e.g. by instructing another employee to discriminate against the worker.
  • In section 6 we suggest the worker either refers to their employment tribunal claim form if they have already made a claim or say ‘see attached’  and enclose a separate document headed ‘paragraph 6’ in which they set out what happened to them.
  • In section 7 the worker should merely state “I consider that the treatment I describe above may have been unlawful”.  Leave the rest of this section blank.
  • In section 8, the worker sets out their detailed questions. Generally, these should ask questions relevant to the allegations of discrimination rather than ask for documents.
    • In respect of every important decision about the worker’s situation and how  they were treated, ask who made the decision, when and the reasons; who was consulted, when and what were their views.
    • Find out the employer’s justification for any refusal to allow part-time working or to offer a particular vacancy.
    • Find out details about any identified ‘comparator’, eg a person of a different sex or who is not pregnant who has been treated better in comparable circumstances. For example, if the worker thinks they were not promoted because of their pregnancy, ask about the qualifications and experience of the person who was promoted and whether they were pregnant.
    • 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 part-time, 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 worker’s case. It is also difficult to prove to disprove unless the worker is 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.
    •  Find out the employer’s relevant policies, eg on childcare, part-time working or dependant’s leave. More importantly, ask questions to see how these have been operated in practice, especially by the relevant managers or in the relevant departments.

You may find it helpful to look at an example of a completed Questionnaire.

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