ACAS have just issued a document giving guidance. It can be found here
The Government announced last year that they considered the current Questionnaire procedure in discrimination cases a burden on business and proposed abolishing it entirely. This is despite the procedure having been on the statute books in one form or another since the Sex Discrimination Act 1975 and 83% of respondents to the Government Consultation in 2012 opposed repeal.
The current procedure is set out in S.138 of the Equality Act 2010 and the Equality Act 2010 (Obtaining Information) Order 2010. The Government carried out their threat by enacting S.66 of the Enterprise and Regulatory Reform Act 2013 that repeals S.138 of the Equality Act 2010 in relation to all contraventions occurring before the section comes into force. The Government announced that S.66 comes into force with effect from 6th April 2014.
The questionnaire procedure can be used by workers who believe they may have been subjected to discrimination and who are thinking of bringing an employment tribunal claim. The time limit to serve a questionnaire is any time before the commencement of tribunal proceedings or before the end of 28 days beginning on the day on which proceedings are commenced.
This means that if you are contemplating bringing discrimination proceedings you have until the 5th April to serve a questionnaire. Serving a questionnaire does not stop the time limit running. You must issue tribunal proceedings within 3 months less 1 day from the act or last act of discrimination.
The procedure enables a worker to ask the employer any relevant questions which will be useful in finding out why s/he has been treated in a certain way and whether s/he can prove discrimination. There is a standard form that can be used.
The employer is expected to answer the questions in writing within eight weeks. The questions and answers can be used as evidence at the employment tribunal hearing if the case goes ahead. Ambiguous or evasive answers by an employer can be used by the tribunal to draw adverse inferences against the employer when deciding if discrimination has occurred.
Section 138(4) of the Equality Act 2010 states that:
A court or tribunal may draw an inference from –
- (a) a failure by R to answer a question by P before the end of the period of 8 weeks beginning with the day on which the question is served;
- (b) an evasive or equivocal answer
The Questionnaire procedure was a powerful weapon in assisting claimants to bring discrimination claims and it was felt the ACAS Guidance would represent a severe weakening of claimants’ rights. I am not so sure having read the Guidance which is 26 pages long. I suspect some respondents will soon be calling for the reinstatement of the Questionnaire procedure with all its certainties over time limits and inferences.
Repeatedly ACAS refer to the fact someone asking questions in good faith is generally protected under the Equality Act 2010 were they subsequently to suffer victimisation for this action. They also refer to the need to refer any grievance to ACAS for Early Conciliation which is also due to come into force on the 6th April. It will not be possible to lodge a claim in the tribunal without a certificate from ACAS that Early Conciliation has been completed.
The Guidance then sets out a 6-stage procedure for “questioners”
Step 1 – Questioner’s and responder’s details
The questioner should set out their name and address and that of the person or organisation and others who the questioner thinks may have discriminated against them.
Step 2 – Protected characteristic under the Equality Act 2010
The questioner needs to identify which protected characteristic(s) may have been the subject of the unfairness they’ve experienced. There are nine protected characteristics. It may well be that more than one protected characteristic is relevant to the treatment experienced.
Step 3 – Description of treatment
The questioner should set out a brief factual description of the treatment, or lack of treatment, or the failure to make a reasonable adjustment in the case of a disabled person to which the complaint relates and the circumstances leading up to that treatment. The description should aim to give key factual details, such as the date, time, place and number of instances of the treatment [or failure] that are central to the complaint…
Step 4 – Type of discrimination you experienced
To help the responder answer the questions, the questioner needs to identify the type of discrimination they believe might have occurred…
Step 5 – Why do you think your treatment was discriminatory?
This step allows the questioner to set out why they think the treatment or disadvantage described in Step 3 above might be unlawful…
Step 6 – Additional questions about treatment
The questioner can ask any appropriate questions of the responder that they consider might be important to the events they feel have affected them. Many organisations have policies to ensure fair practice in the workplace such as for equality, discipline and grievance, bullying and harassment and questioners might want to ensure they have been treated consistently with them. A questioner can ask for statistical information to show how people with their protected characteristic are treated within the organisation.”
There then follows very detailed guidance on how the questions should be served and how a time limit for a response should be set.
ACAS then turn to how someone should respond. ACAS say
“Questions about potential discrimination at work should be dealt with
seriously and promptly by the responder. The responder should consider
carefully the most appropriate way to respond given the possible implications of any response. If a responder chooses not to answer then a claim may be lodged at Tribunal that may have been avoided by providing clear answers in the first place. Further, a Tribunal may order that the responder provide answers in any event as part of a claim.”
A 3 step process for responding is set out along with the following warning
A responder is not under a legal obligation to answer questions. However a tribunal or county/sheriff court may look at whether a responder has answered questions and how they have answered them as a contributory factor in making their overall decision on the questioner’s discrimination claim. A Tribunal or court may also order a responder to provide such information as part of legal proceedings in any event. These are issues a responder would need to weigh up when considering if to reply and what to say.”
This is not very different from the old Questionnaire procedure as the wording of S.138 (4) used the term “may” with regards to inferences. I think a claimant’s representative could write a “without prejudice as to costs and fees” letter to a reluctant responder threatening to apply for costs/fees (and a financial penalty if they are introduced in April) if the responder refuses to answer the questions. This would be on the basis that it is a breach of the overriding objective and is otherwise unreasonable conduct to refuse to answer the questions forcing the questioner to issue proceedings. I foresee a lot of satellite litigation about this.
It should be noted there is a separate procedure in the Guidance for Equal Pay claims. There is also a very useful template for Questioners.
I think that the ACAS Guidance is going to be quoted extensively in grievance and tribunal proceedings and all union representatives should have a copy with them whenever they are meeting employers about a discrimination case for a member. The Questionnaire procedure was only used sporadically by claimants and their representatives. This ACAS Guidance could provide a boost to making use of Questions in discrimination cases.
The Court of Appeal have today referred the Government’s Appeal from the EAT decision in USDAW v Ethel Austin Limited (In Administration) and USDAW v WW Realisation1 Limited and Others (the so-called Woolies case) to the European Court (CJEU).
The EAT decision can be found here.
My original blog on the issue can be found here.
The issue in the case is whether the EAT were correct to delete the words “at one establishment” from S.188 of the 1992 Act so, an employer is obliged to consult the recognised trade union of elected workplace representatives whenever they propose to make 20 or more persons redundant wherever they are employed. The EAT accepted the argument that the wording of S.188 was not consistent with the wording of the Directive. To give effect to the wording of the Directive, the EAT said S.188 must be read ignoring those words.
Embarrassingly the Government did not turn up at the EAT hearing despite being invited and were only granted leave to appeal to the Court of Appeal on condition that they bore all the appeal costs for both sides.
The CJEU are already considering a referral on a similar issue by the Northern Ireland Industrial Tribunal in a case called Lyttle and Others arising out of the transfer of Bon Marche stores to Bluebird UK Bidco 2 Limited and the subsequent redundancy of a number of employees as many stores were closed. That decision is here.
I understand that the Court of Appeal have referred 2 issues to the CJEU:-
1. Interpretation of the term “establishment”;
2. Does the Directive have direct effect against the Secretary of State against whom the claim is effectively brought as Woolworths (and Ethel Austin) are insolvent.
The Court of appeal has asked for the referral to be heard at the same time as Lyttle and to be expedited.
I will blog again when the court of Appeal decision is published and there is any news on when the CJEU is to hear the referral. In the meantime I suggest union officers continue lodging tribunal claims where employers do not consult and there are proposals to make 20 or more employees redundant within 90 days or less anywhere in the country.
The final version of the Collective Redundancies and Transfer of Undertakings 9f Protection of Employment (Amendment) Regulations (“CRATUPEAR 2014”) have now been published.
They can be found here: http://www.legislation.gov.uk/uksi/2014/16/contents/made. The Government have also issued revised guidance.
I previously blogged about this when the Government published their response to the consultation last October. There are no major changes from what I flagged up then. Here is the link https://pattinsonbrewer.co.uk/the-government-publishes-its-response-to-consultation-on-tupe.
The regulations take effect in respect of all transfers occurring on or, after the 31st January 2014, except for the obligation to provide Employee Liability Information in 28 days rather than the current 14. These come into force for transfers taking place 3 months after the 31st January. The right of micro businesses (employing 10 or less employees) to consult direct with affected employees if there are no appropriate representatives come into force in respect of transfers that complete on or after 6 months after 31st January.
Changes announced in CRATUPEAR 2014 include:
- The Service Provision Change (“SPC”) introduced in the 2006 TUPE regulations will continue but, only where the new activities being carried out are “fundamentally the same as the activities carried out previously” This may narrow the occasions when the SPC applies on a retender.
- Employers are now able to count pre–transfer consultation for collective redundancy purposes if redundancies are envisaged after the transfer, but only if the current employer agrees.
- There is now an additional 14 days for current employers to provide employee liability information
- Contractual rights that transfer which are derived from collective agreements are frozen at the date of transfer. This is the static approach derived from the Alemo-Herron decision of the European Court. See my blog here https://pattinsonbrewer.co.uk/dynamic-loses-out-to-static-in-the-european-court-of-justice/
- The dismissal of an employee under Regulation 7 of TUPE 2006 will now only be automatically unfair if the reason for the dismissal is the transfer itself rather than being connected with the transfer.
- A change in the place of employment may now be a justifiable reason for dismissal for redundancy, even where a TUPE transfer has led to the dismissal.
- Employers will be permitted to consult directly with employees in relation to a relevant transfer where there is no recognised independent union, nor any existing representatives, and fewer than 10 employees, so-called micro-businesses.
There are bound to be lots of cases testing the boundaries of the new legislation in forthcoming months.
Paul Statham
International publication Finance Monthly has drawn up the short-list of candidates for its annual awards, based on votes by their readers http://www.finance-monthly.com/awards/global-awards and industry research carried out by their international research team.
The editorial team has confirmed Pattinson & Brewer’s short-listing in the category for Personal Injury Law Firm (UK) and reported to us that this year competition has been fiercer than ever. (more…)
New Year predictions from Paul Statham
A Happy New Year to you all! In July last year, ELA Briefing published an article by me, in which I looked into my crystal ball to predict the future of employment law in the light of all the changes introduced by the ConDems last year. You can find it here:
http://pattinsonbrewer.anicca-test.co.uk/wp-content/uploads/2013/06/ELA-PSFeature-7-8.pdf
It is always dangerous to try to predict the future. I see that I almost immediately got the sex of the Royal baby wrong, although at the mid-point in the season Chelsea appear to be hanging in there as potential champions. What does 2014 hold for employment law?
Here are some important changes that are already timetabled:
• 31 January 2014 – the TUPE amendment regulations come into force. See my blog
https://pattinsonbrewer.co.uk/the-government-publishes-its-response-to-consultation-on-tupe/
• 6 April 2014 – ACAS early conciliation will be introduced. It will not be possible to lodge a tribunal claim without first going through this process and time limits for lodging claims may be extended in some cases.
• 6 April 2014 – discretionary financial penalties for employers who lose Tribunal claims are expected to come into force. Respondents who lose cases where there are undefined “aggravating features” may be ordered to pay the Government a financial penalty of at least £100 and not exceeding £5000. There is an early payment discount of 50% just like parking fines, although no provision that the claimant should be paid their compensation first.
• 6 April 2014 – discrimination questionnaires will be abolished. They are said to be a burden on business even though they have existed since Section 74 of the Sex Discrimination Act 1975.
• 6 April 2014 – the Children and Families Bill will amend the Employment Rights Act 1996 to extend the right to request flexible working to all employees with at least 26 weeks service.
• Spring 2014 – the introduction of a health and work assessment and advisory service to manage workplace sickness and absence.
• October 2014 – expected annual increase to national minimum wage rates.
The date for the annual index-linked change to the compensation limits for Employment Tribunal claims moves from 1 February to 6 April. The Government is not obliged to make an index linked change where the power to vary was exercised in the previous 12 month period. It may be that the next index-linked change will be April 2015 rather than April 2014.
There are also some important case law developments awaited with interest.
Firstly, a judgment is awaited in respect of the judicial review by Unison of the introduction of employment tribunal fees. It was promised before Christmas and is now overdue.
Also keenly anticipated is the Employment Appeal Tribunal decision in Neal v Freightliner Ltd relating to the calculation of holiday pay following on from the Employment Tribunal decision which held that overtime payments should be included in the calculation of a week’s wages for holiday pay in certain circumstances despite the explicit wording of the Working Time Regulations. Many employers are very concerned about potential back pay liabilities.
The Court of Appeal decision in the Woolies case is also expected to decide whether UK legislation on collective redundancy consultation can be read to exclude the words “at one establishment”. See my previous blog
No doubt there will be other significant developments in case law and employment tribunal practice which will be reported here.