No automatic adverse inference for failing to complete discrimination questionnaires
In D’Silva v NATFHE & Others, Mr D’Silva, a university lecturer and member of the National Association of Teachers in Further and Higher Education (NATFHE) union, claimed the union had discriminated against him on grounds of race in the way it handled his applications for legal assistance in bringing discrimination claims against Manchester Metropolitan University. His complaints were dismissed by the Employment Tribunal. He appealed to the Employment Appeal Tribunal (EAT). His appeal included a claim that the Tribunal had refused to draw adverse inferences of discrimination from the alleged failure of the union to fully answer a Race Discrimination Act 1976 questionnaire.
The EAT dismissed Mr D’Silva’s appeal. It held that failure to answer a questionnaire, or indeed to provide other information or documents, does not automatically raise an inference of discrimination. While these are matters from which an inference can be drawn, it held that the drawing of inferences from such failures is not a "tick-box exercise". It is necessary in each case to consider whether, on the facts, the failure in question is capable of constituting evidence supporting the inference that the respondent acted discriminatorily in the manner alleged and, if so, whether, in the light of any explanation supplied, it does in fact justify that inference.
The EAT suggested that if a claimant pursues this point in circumstances where it is obvious that the failings have no bearing on the question of discrimination, he or she runs the risk of being penalised.
From: http://www.mondaq.com and: http://www.personneltoday.com
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