Discrimination in the workplace does not only lead to inequality, it may also cause substantial harm to individuals, undermining confidence and making the workplace a stressful place to be. Applying for information under the new Equality Act 2010 (“the Act”) is a way of finding out if you are being treated equally and fairly.
In 2010, the Act replaced the previous anti-discrimination acts. There were historically a number of different statutes dealing with different types of discrimination, such as the Race Relations Act, the Disability Discrimination Act and the Sex Discrimination Act. The Act provides guarantees that individuals will not be treated differently as a result of having one of a number of defined characteristics which are protected. For example, the Act ensures that individuals must receive the same salary as someone else doing work that is ‘like’, ‘equivalent’, or ‘of equal value’.
In order to establish your case, you will need to demonstrate less favorable treatment and in many situations this is only possible after appropriate investigation – you might need to prove, for instance, that a man and a woman working in your company in the same or equivalent role would earn a different salary, which could be evidence of discrimination. To establish this, you can ask your employer to fill in the Equality Act Questionnaire, which is a set of questions which apply under section 138 of the Act.
From an employer’s perspective, responding to a Questionnaire is voluntary but inferences will be drawn if you fail to co-operate, either in full or part.
Why is it important?
The questionnaire enables employees to answer key questions early on in the legal process. It can dramatically speed up the case and can even avoid the necessity of going to an employment tribunal. In the event that the case is taken to the tribunal, the completed questionnaire is a clear and concise source of information and a simple way of presenting the complaint.
The questionnaire is important both for the complainant, and for the employer. While the complainant gets his or her questions answered, the employer also has the opportunity to explain and justify any differences or explain the circumstances that arose to the particular claim. It may be that there is an acceptable reason behind a perceived inequality, such as geographical concerns, or a need to incentivise in order to keep certain jobs filled.
If the factors the employer cites have resulted in an imbalance, then the employer needs to demonstrate that this is not due to discrimination (it could, for example, be due to economical concerns leading to workers doing long shifts and late hours at short notice being rewarded, which would penalise a greater proportion of women with childcare responsibilities.)
How it should be used ?
Whilst the Questionnaire is quite detailed, the questions are fairly generic and in many instances, to draw out the information which an employee may need to clarify whether discrimination is occurring, the right additional questions need to be asked. In many situations, experienced help either from employment investigators such as Blackhawk Investigations or employment solicitors can make the difference between uncovering discrimination or otherwise.
Confidential information can be requested and disclosed on the Equality Act Questionnaire. All factors which affect an employer’s treatment of employees are relevant. The employee is therefore allowed to ask the employer about the salary of equivalent colleagues for the purposes of the inquiry, in which case the permission of the ‘comparator’ should be sought.
Although the employer is not legally bound to respond to the questionnaire, it will not look good in an employment tribunal if the employer has refused to fill it in. The tribunal can draw conclusions if the form is more than eight weeks late, or if the answers are ambiguous or partial. The court may infer that if good enough reasons for the salary difference are not given, then the true reason must be discrimination.
How a solicitor can assist
After the form has been submitted, it may be that a suitable resolution can be reached, whether by an adjustment in position by the employer which is acceptable to the employee, although it should be remembered that when these situations arise, trust and confidence have often eroded to a point where the employment relationship has been severely damaged. In that situation, the best outcome may be a compromise agreement to terminate employment. Failing that, the case may well go to the employment tribunal where a solicitor can represent you and argue your case.