Employment Alert No. 94 - Drawing Inferences Of Discrimination
March 9, 2005
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Introduction |
The EAT has made it clear that a Tribunal may infer that an employer (or other entity) has committed a discriminatory act if the employer answers evasively or inadequately any question posed, at any time, by a person who believes that they may have been discriminated against.
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Background |
Each of the statutes and regulations prohibiting discrimination on the grounds of sex, race, disability, religion or belief and sexual orientation give a person who believes they may have been discriminated against the right to ask the alleged discriminator questions relevant to the issues.
To assist complainants to ask questions, the Secretary of State has produced Discrimination Questionnaires.
The legislation goes on to provide that if the employer (or other entity):
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does not reply at all;
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does not reply within 8 weeks (except the sex discrimination legislation which still provides for replies within a reasonable timeframe);
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replies evasively; or
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replies vaguely or ambiguously;
to any question the Tribunal may, from that fact alone, draw an inference that the employer (or other entity) has committed the discrimination is it accused of.
In the case of Dattani v Chief Constable of West Mercia Police, the EAT considered how wide the Tribunal’s discretion to draw an inference is.
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What had the EAT decided? |
If an employer (or other entity) fails to respond, or provides an evasive response etc. as set out above, to any question asked by an aggrieved person, that could lead to a Tribunal drawing an adverse inference of discrimination. This is the case whether or not the questions are asked in a Discrimination Questionnaire.
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What does this mean for employers? |
This case is an important reminder to employers (and those who engage contractors) that if, at any time, they are asked a question by a person who believes they may have been discriminated against then care should be taken to reply:
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promptly (and within 8 weeks - this time limit is being introduced into the sex discrimination legislation this year);
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as fully as possible; and
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clearly.
These principles apply whether or not the employee has issued Tribunal proceedings, or even threatened to and whether the question is in a letter, email, fax or oral.
Failure to comply with these principles could result in a Tribunal inferring that discrimination did occur.
