My Lords, I was unable to take part in the debate on this issue on 14 January in Committee because of ill-health. I am grateful to those who spoke at that time. We are dealing here with a procedure invented in 1974, one that has worked very well and is designed to help people without legal aid to know whether they have a good case for discrimination. This procedure concerns not only ethnic minorities, religious minorities, women, the disabled and the elderly, but everybody protected by the Equality Act 2010.
The repeal of the statutory procedure that enables would-be claimants to use a standard form to find out whether they have a good case would greatly diminish and impair the ability of potential claimants to have effective access to justice in pursuing claims of alleged unlawful discrimination. It would be regressive and undermine the practical benefits of the Equality Act
for women and girls, ethnic and religious minorities, the disabled, the elderly, and gay and lesbian men and women. I therefore hope that the Minister will be able to accept this amendment so that the procedure may be retained.
The questionnaire procedure was introduced into the Sex Discrimination Act 1975 and the Race Relations Act 1976 when I was special adviser to Home Secretary Roy Jenkins. The White Paper, Racial Discrimination, published in September 1975 explained in paragraph 85 that:
“Help will be given to a person who considers that he may have been discriminated against unlawfully to decide whether to institute proceedings and, if he does so, to formulate and present his case in the most effective manner … In addition to helping the aggrieved person to ascertain the nature of the respondent’s case at an early stage by means of a simple, inexpensive procedure, this provision will also enable complaints which are groundless or based on misunderstandings to be resolved without recourse to legal proceedings”.
The position with discrimination law is that the burden of proof remains, as it has always done, on the claimant to make out a prima facie case before the burden shifts to the employer or service provider. The Explanatory Notes to Section 136 of the Equality Act 2010 explain that,
“the burden of proving his or her case starts with the claimant. Once the claimant has established sufficient facts, which in the absence of any other explanation point to a breach having occurred, the burden shifts to the respondent to show that he or she did not breach the provisions of the Act”.
That has always been the position and it involves a fair sharing of the burden of proof. As Karon Monaghan QC notes in the leading textbook on equality law in paragraph 14.18:
“The courts have long acknowledged that proving direct discrimination ... is peculiarly problematic. This is reflected in such statistical data as exists, which indicates that discrimination, particularly race discrimination, cases have lower prospects of success than any other comparable claims”.
She reviewed the case law and concluded:
“The outcome of a case will ... usually depend on the inferences which it is proper to draw from the primary facts. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with the questionnaire provisions”.
Abolishing the questionnaire procedure would deprive the tribunal or court of the power to draw such inferences because of the failure by the employer or other respondent to answer the questions or because they did so in an equivocal and shifty way. That would be unfair and unjust. The Minister accepted in Grand Committee that the questionnaire form is “simple and straightforward” but she cited fears expressed by the Opposition in 1975 that the procedure might be abused. That was before the forms were published and used and there is no evidence of which I am aware that the procedure has been abused or indeed criticised by any court, tribunal, legal practitioner or academic during the 35 years it has operated. I invite my noble friend the Minister to indicate whether she agrees, or has even a scintilla of evidence—as opposed to assertion—that any court, tribunal, legal practitioner or academic during the past 35 years has ever suggested that the procedure is abusive. In Grand Committee the Minister referred to the procedure as not being replicated in other areas of employment law. That is because there
are special difficulties in proving discrimination cases, as the courts have repeatedly said.
The procedure has proved to be of real practical benefit for potential claimants and respondents and was extended by successive Governments and Parliaments to the other forms of unlawful discrimination in the employment, education, goods and services, and public service provision fields. It applies to alleged discrimination because of religion or belief, sexual orientation, disability, and age, and in relation to equal pay without sex discrimination. It was included in Section 138 of the 2010 Act without controversy or any opposition in either House. It does not require the complainant to use the forms prescribed by the Minister, so there is no micromanagement here.
Complaints of alleged discrimination—whether direct or indirect—are, as I have said, very hard to prove and most of the relevant information is in the possession of the respondent rather than the claimant. For example, in a direct discrimination case the claimant has to choose a comparator to prove less favourable treatment on a ground forbidden by the Act. The burden of proof is on the complainant. Only the respondent is in possession of the relevant facts about whether the comparison is appropriate and whether the facts show less favourable treatment, and, if so, the reason for this. Similarly, in an indirect discrimination case, the claimant has to prove disproportionate adverse impact on forbidden grounds. Again, only the respondent has the facts, including statistical or other material and whether there is an objective justification for the discriminatory barrier.
It is essential that the potential respondent is encouraged to disclose the essential facts at an early stage to help the potential claimant to know whether to proceed and also to encourage conciliation and settlements by encouraging the respondent to take the matter seriously pre-litigation. If the procedure were abused, the employer or service provider could refuse to reply and the tribunal would uphold their position because of the abusive approach of the claimant.
These considerations were not brought out in the Government’s consultation paper, which stated that the Government had seen no evidence that the question and answer procedure reduces litigation. As a result of the consultation, however, evidence did come to light, notably from the Equality and Human Rights Commission, about the practical utility of the procedure. The commission’s position paper was published in August 2012. Its evidence is particularly important. Parliament has made the commission responsible for monitoring the effectiveness of the legislation and the likely effect of a proposed change of law. That is what Parliament has decided. The commission is able to draw on 35 years of experience by the equality agencies it has replaced.
The commission has explained that the procedure has led to cases being resolved or not being pursued and that repealing Section 138 would limit the evidence on which a claimant can rely in proving their case. The commission has found the procedure useful in assessing the strength of a case and has made decisions not to assist a case under Section 28 based on the response to questionnaires. By making it harder for the claimant to seek an effective remedy for discrimination there is
an increased risk of a legal challenge to the repeal of Section 138. The commission also rightly points out that claimants will still have the right to pose questions pre-claim but that it is preferable to do so on the basis of the questionnaire.
The Government’s response does not address any of the issues raised by supporters of the procedure—some 83% of respondents—including not only the EHRC, trade unions and the equality NGOs but also the judiciary. The Government dismiss the evidence as not “quantifiable” and state that the question and answer procedure,
“encourages undesirable micro-management of the process by government, including prescribing the nature of the forms to be used, and the time limits involved”.
It is difficult to understand how the procedure can be described as micromanagement, still less as undesirable micromanagement. The Government consider that the more effective approach is to leave,
“businesses free to decide how and whether they respond to enquiries of this sort, with any attendant balance of risk that may be involved”.
I cannot agree. With the existing questionnaires, the tribunal or court can draw a negative inference against an employer who fails to respond to the questionnaire. That is an important incentive for employers, trade unions and services providers to respond. Without that incentive the help given under the Equality Act and its predecessor Acts is taken away and the claimant falls back on the disclosure powers of the courts and tribunals. These are extensive and disclosure orders are far more time consuming than filling out the existing questionnaires.
In its excellent briefing, the Equality and Diversity Forum expressed concern about the proposal to abolish the questionnaire procedure because it saves money by deterring ill-founded litigation, enables the early resolution of disputes, clarifies the issues in contention and facilitates access to justice. Some 83% of consultees oppose the repeal of this provision. Indeed—your Lordships may think this is a killer point—the president and the regional employment judges of the employment tribunals have described it as a retrograde step. There is no credible evidence that I know of that the procedure is a burden on business. I agree and I beg to move.
6.30 pm