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05th September 2013

Just when you thought you were safe…

Employers are vulnerable to receiving “discrimination questionnaires”.  Individuals who feel they have been victims of discrimination can send a questionnaire to their would-have-been, actual or past employer to gather evidence of any discrimination. A questionnaire is a document that no business owner, director or HR manager wants to have arrive on their desk. Irrespective of any culpability, responding can be time consuming (opportunity cost) and, if one has not arrived already, be the pre-cursor to an Employment Tribunal claim. Because of the disruption they cause they can be used vexatiously for financial gain or even just out of pique.

To reduce the burden of employment legislation questionnaires, will be discontinued in 2014. So will employers then be safe?

Maybe not. A recent article in People Management suggests that dis-affected individuals may use the Data Protection Act to make a “subject access request”. There are some disturbing implications. Such requests may be equally time consuming, the timescale shorter (40 days as opposed to 8 weeks) and failure to comply can result in court procedures and fines. And, of course, requests can still be made vexatiously.

Employers need to watch out for subject access requests. They may be made apparently innocuously, such as in a simple email request.

Since the rights are not well known, if you receive a request then it is quite likely that the requester is already taking legal advice. You may want to do the same. However, there are still some steps you can take to fend requests off. For example you can request a fee for complying with the request. While the maximum fee is £10 and unlikely to fend off a serious request, it may put off a casual enquiry or avoid a misunderstanding. You are also entitled to require information from the “subject” so you can identify what information you may hold on them; they might fail to respond.

Also the individual is only entitled to information that has them as a focus and is biographical to some extent. That said, not only may there be exceptions, there is also plenty of room for argument!

Of course this is all about trying to close a stable door. Non-adversarial employee relations, good people management policies, practices where you can clearly identify and record reasons for decisions, and non-discriminatory decision criteria will all reduce risk.

Malcolm Martin – QCS Expert Contributor on Human Resources

Topics: Human Resources


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