This short, but important, point has been considered by the EAT in Dattani v Chief Constanble of West Mercia Police.
The EAT held that evasive, incorrect, or nil replies to questions asked in a race discrimination case can lead to drawing an inference of discrimination under s65 of the Race Relations Act 1976, even if the questions were not asked under the statutory procedure.
This conclusion was reached on two grounds. First, construction of s65, which refers to questions posed by an aggrieved person "whether in accordance with an Order under sub-section (1) or not" (that being the subsection enabling the Secretaty of State to prescribe forms for the questionnaire) - see para. 43.
Second, on policy grounds. The EAT held that "a respondent, asked a direct question in writing by an aggrieved person, who fails to respond, or does so evasively, ought to be treated in the same way irrespective of whether a question has been asked under the statutory procedure." (para. 44)
This may have an adverse impact on employers who are unfamiliar with the legal process, as a statutory questionnaire contains an express warning that evasive or equivocal replies can lead to the drawing of an adverse inference, so the employer is put on notice. A question in a letter is unlikely to contain such a warning. Having said that, this is undoubtedly the correct result bearing in mind that s65 was drafted long before the reversal of the burden of proof, and the reversal of the burden of proof means that every inconsistency by an employer is liable to be seized upon by an employee as grounds for drawing adverse inferences.
Dattani v Chief Constable of West Mercia Police