I struggle to find a more striking example of bloody-mindedness on the Government’s part than its approach to proposed reform of the Equality Act 2010. My particular bugbear concerns its plans to abolish the statutory questionnaire procedure – S.138 EqA.
When it opened consultation on the issue back in May this year, the Government complained of seeing no evidence that S.138 ‘had the intended effect of encouraging settlement of claims without recourse to tribunals or the courts’. However, this was never the purpose of statutory questionnaires. The antecedent discrimination legislation, such as S.74 of the Sex Discrimination Act 1975 and S.65 of the Race Relations Act 1976, made it clear that questionnaires assist the claimant in establishing facts from which the tribunal can draw an inference of discrimination. See, for example, Igen Ltd (formerly Leeds Careers Guidance) and ors v Wong and other cases 2005 ICR 931 (Brief 777), where the Court of Appeal highlighted the importance of statutory questionnaires in the context of the burden of proof.
In its response to the consultation, the Government conceded this point. However, notwithstanding 83% opposition, it has decided to push ahead with its plans by way of amendments to the Enterprise and Regulatory Reform Bill, citing that questionnaires encourage undesirable ‘micro-management’ of the tribunal process and are a burden on business.
Understandably, this has given rise to some protest. The Law Society, for example, warns that questionnaires serve the purpose of discouraging cases which have no merit, and encourage employees to ask all their questions at once rather than through a time-consuming informal inquiry process.However, others welcome this new development. One law firm claims that, in its experience, questionnaires are rarely used and amount to nothing more than a ‘fishing expedition’. Such comments, coming as they do from the coal face of tribunal litigation, cannot be ignored… But whatever the pros and cons of the proposal, it seems to me that the Government’s wilful misunderstanding and refusal to engage fully with the issues demonstrate that it has ridden roughshod over the debate here, in the interests, no doubt, of cutting costs and repairing the economy. This blinkered approach can never be a good way of effecting reform.