“I am a HR Manager in a company where we have recently completed a grievance process with an employee who had made allegations of discrimination on the grounds of their religion: their complaint was not upheld.  We have now received a statutory questionnaire from the employee. I have never received such a document before.  How do I handle this?”

An individual may use the questions procedure regarding complaints of discrimination on the grounds of religious belief or political opinion as set out in Article 44 of the Fair Employment and Treatment (Northern Ireland) order 1998 (the “Order”). A similar question procedure is available where an individual complains that they had been discriminated against on the grounds of their gender under the Sex Discrimination (Northern Ireland) Order 1976. The questionnaire does not mean the employee has already issued an employment claim against the company.

The company, as recipient of the questionnaire, is not obliged to respond to it.  You should however be aware that if you do not reply, fail to reply within a reasonable period, or reply in an evasive manner, a Tribunal may draw an adverse inference from the company’s conduct, if Tribunal proceedings are issued and the matter comes to hearing.

The statutory questionnaire you have might be a prepared form which is available from the Northern Ireland Equality Commission however, the individual is not under an obligation to use that particular form.  The employee/individual may ask questions under the statutory process, by way of a letter, with the same time limits applying as set out below.

You will see from the statutory questionnaire itself (assuming it has been sent in the standard format) that it can be issued before a complaint to the Tribunal has been made, in other words before employment proceedings are commenced, usually within 3 months of the discriminatory act/conduct complained of, or within 21 days of the individual lodging their claim at the Fair Employment Tribunal.  You have not indicated whether the employee has issued employment tribunal proceedings and it may be that they have not, or perhaps that a complaint has been lodged at the Tribunal but not yet served upon the company.

The company should carefully consider whether they wish to reply to the questions, and provide documentation requested by the individual, within eight weeks. If you decide to reply, and also supply supporting documents, remember the company’s obligations under GDPR when preparing your response.  It may be that you can comply with those obligations, and also respond to the questionnaire by redacting information in the documents given to the employee. Even if company documents are marked “confidential” or “private” it may be that in taking certain steps, you could release those in response to the questionnaire whilst still complying with the company’s GDPR requirements.

If you are minded to do so, a full and proper response to the statutory questionnaire served before the issue of proceedings to the Fair Employment Tribunal is a useful tool for the employee/prospective claimant to gather information to assess the strength of their claim. Responding to the questionnaire and providing documentation requested, could mean that in assessing their claim, the employee decides not to proceed with formal Tribunal proceedings.

Of course, equally, the company’s provision of documents to the employee could support the individual’s belief that they have been discriminated against on the grounds of their religious belief. The notion of assisting a potential claimant to formulate their claim against the company should not of itself, however, be the reason not to respond to the statutory questionnaire.  You should remember that the Fair Employment Tribunal can draw an adverse inference from the company’s failure to respond, including that the employee/claimant has suffered the alleged discriminatory treatment.

Should you decide to reply to the questions raised, you should keep a copy of the questionnaire itself, the company’s response to each of the questions raised, and all of the documents provided. If Tribunal proceedings are issued, this question procedure does not automatically replace the interlocutory process of requesting and providing additional information and relevant discoverable documents, even though some may have already been released to the employee/claimant under this statutory question procedure.

The questionnaire, the company’s response and the documents provided can be produced as part of the bundle of papers used by the Tribunal in determining the issues between the parties. Consequently, it would be an easy task for the Tribunal and the employee’s representatives to compare the company’s response to the questionnaire with any documents or particulars later provided to gauge the veracity of the company’s response to the questions process.

I recommend therefore you consider seeking advice on the questionnaire received and the company’s response, and suggest that even though the question procedure may be a useful tool for the employee, the company should not automatically dismiss it without reply.