Importance of Race Discrimination Questionnaire RR65

Employees who believe that they have been racially discriminated against at work and are considering pursuing legal action may serve a race discrimination questionnaire upon the employer.  The questionnaire procedure is set out in the Race Relations Act (Questions and Replies) Order 1977.

In the UK landmark case of Chagger v Abbey National plc & Hopkins of 2006, Abbey National's evasive response to Mr Chagger's race discrimination questionnaire contributed to the Employment Tribunal's judgement of race discrimination, which (after Abbey National's refusal to comply with the Tribunal's order to re-instate Mr Chagger to remedy its wrongdoing) led to the record £2.8 million compensation order.  Balbinder Chagger, of Indian origin, was employed by Abbey National (part of the Banco Santander Group) on a remuneration of around £100,000 per annum and reported into Nigel Hopkins.  In 2006, he was dismissed ostensibly for reason of redundancy.  The Tribunal found that Mr Hopkins had used the redundancy process as a means to remove Mr Chagger from his position, and that both Mr Hopkins and Abbey National had discriminated against Mr Chagger on the grounds of race in respect of his dismissal.

The employee serves his questions using the standard questionnaire form RR65.  The form contains a few standard questions, like to what extend does the employer concur with the employee's account of events, what is the employer's account of events, and does the employer accept that the employee was discriminated against and if not, then why not.  The employee may append his own specific questions to those standard questions.

Serving a race discrimination questionnaire is not a mandatory step in dealing with the discrimination through formal legal proceedings; it is optional.  However, it is a step that affords the employee a unique opportunity (in that questions of an exploratory nature are permitted) to gather evidence in support of his case, as well as, to acquire additional information for the purpose of deciding whether to take legal action.  With that in mind, the employee should design his questions to reveal evidence that proves race discrimination which is known only to the employer, reveal fully the employer's case, and determine which facts are accepted by the employer and which are in dispute.

Once served, the race discrimination questionnaire needs to be answered in writing within a reasonable time period, set as 8 weeks from the date the employer received it.  The employer's responses may be submitted as evidence before an Employment Tribunal.  The employer does not have to respond to the questionnaire, and cannot be ordered to do so by the Employment Tribunal.  However, failure to answer within the time limit and/or evasive or ambiguous answers can be held against the employer.

The Race Relations Act 1976 allows an Employment Tribunal to draw any adverse inferences it considers just and equitable, including the inference that the employer committed an unlawful discriminatory act, where it believes the employer deliberately and without good reason did not respond within the time limit and/or the responses were evasive or ambiguous.  This means that an Employment Tribunal may be able to make a finding of race discrimination based solely on the adverse inferences it has drawn regarding the questionnaire although, in reality, it is unlikely to do that.  However, the Employment Tribunal may take a serious view on the employer's failure to respond properly and be persuaded by it, along with other accompanying evidence.  The likelihood of the Employment Tribunal drawing adverse inferences will be increased if the employee asked reasonable questions and made efforts to chase the employer and encouraged it to respond properly.  The employer will not know the consequences of its failures until it is facing the Employment Tribunal, at which point it will probably be too late for the employer.  An employee that avails himself of the questionnaire procedure automatically gains this tactical advantage.

Abbey National had got itself into such a situation. The Tribunal noted that Abbey National had failed in answering Mr Chagger's race discrimination questionnaire. Mr Chagger had asked Abbey National to provide details of legal actions of race discrimination brought against it since 1 January 2001.  Abbey National responded with 17 citations of incidents.  In respect of 6 dating from 2001 and 2002, Abbey National merely stated that the outcomes of the actions were unknown and that it was unable to obtain information regarding the outcome during the period in which the questionnaire had to be answered; no further answer was ever provided to Mr Chagger.  The Tribunal concluded Abbey National's answer was evasive.  The failure in answering the questionnaire, along with an abundance of other evidence in the case, satisfied the Tribunal that this was a case in which the burden of proof passed to Abbey National and Mr Hopkins to show that there was no discrimination whatsoever in respect of Mr Chagger's dismissal.

The serving of a race discrimination questionnaire does not signify the beginning of any legal action by the employee; the initiation of legal action is a separate procedure.  If no legal action is brought, then the questionnaire and the response remain a private communication between the employer and employee.  If the employee is seriously considering taking legal action based on other evidence that suggests race discrimination, then the serving of a questionnaire would be appropriate as the employer's response may help the employee to decide.  However, where the employee is not seriously considering legal action, then the serving of a questionnaire would be inappropriate because doing so may unnecessarily vex the employer and/or affect the employee emotionally into pursuing a legal action he didn't initially want to pursue.

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