The Disability Discrimination (Questions and Replies) Order 2004

Statutory Instruments

2004 No. 1168

DISABLED PERSONS

The Disability Discrimination (Questions and Replies) Order 2004

Made

20th April 2004

Laid before Parliament

27th April 2004

Coming into force

1st October 2004

The Secretary of State for Work and Pensions, in exercise of the powers conferred upon him by section 56(2) and (4) and section 67(3) of the Disability Discrimination Act 1995 M1 hereby makes the following Order:

Marginal Citations

M1 1995 c. 50. Section 56 is amended by regulation 22 of the Disability Discrimination Act 1995 (Amendment) Regulations 2003 (S.I. 2003/1673) as from 1st October 2004.

Citation, commencement and interpretation E+W+S

1.—(1) This Order may be cited as the Disability Discrimination (Questions and Replies) Order 2004 and shall come into force on 1st October 2004.

(2) This Order does not extend to Northern Ireland.

(3) In this Order—

“the Act” means the Disability Discrimination Act 1995;

“tribunal” means an employment tribunal.

Revocation E+W+S

2.  The Disability Discrimination (Questions and Replies) Order 1996 M2 is hereby revoked.

Marginal Citations

M2 S.I. 1996/2793.

Forms for questions and replies E+W+S

3.  The forms respectively set out in Schedules 1 and 2 to this Order or forms to the like effect with such variation as the circumstances may require are, respectively, hereby prescribed for the purposes of section 56 of the Act [F1 for cases falling within Part 2 of the Act (the employment field and members of locally-electable authorities) and, in relation to Part 3 of the Act (discrimination in other areas), for cases falling within section 21A (employment services) and sections 19 to 21 of the Act (discrimination in relation to services and duty to make adjustments) in so far as sections 19 to 21 relate to a group insurance arrangement] as forms—

(a) by which a [F2 person aggrieved] may question a respondent on his reasons for doing any relevant act, or any other matter which is or may be relevant; and

(b) by which the respondent may if he wishes reply to any questions.

Textual Amendments

F1 Words in art. 3 inserted (5.12.2005) by The Disability Discrimination (Questions and Replies) Order 2005 (S.I. 2005/2703), arts. 1(1), 5(2)(a)

F2 Words in art. 3(a) substituted (5.12.2005) by The Disability Discrimination (Questions and Replies) Order 2005 (S.I. 2005/2703), arts. 1(1), 5(2)(b)

Period for service of questions E+W+S

4.  In proceedings before a tribunal, a question shall only be admissible as evidence in pursuance of section 56(3) of the Act—

(a) where it was served before a complaint had been presented to a tribunal, if it was so served—

(i) within the period of three months beginning when the act complained of was done; or

(ii) where the period under paragraph 3 of Schedule 3 to the Act within which proceedings must be brought is extended by regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 M3 , within that extended period;

(b) where it was served after a complaint had been presented to a tribunal—

(i) if it was served within the period of twenty eight days beginning with the day on which the complaint was presented, or

(ii) if it was served with the leave of a tribunal, within the period specified by that tribunal.

Marginal Citations

M3 S.I. 2004/752.

Manner of service of questions and replies E+W+S

5.  A question, or as the case may be, a reply may be duly served—

(a) where the person to be served is the respondent, by delivering the question to him, or by sending it by post to him at his usual or last known residence or place of business; or

(b) where the person to be served is the [F3 person aggrieved], by delivering the reply to him, or sending it by post to him at his address for reply as stated by him in the document containing the questions or, if no address is so stated, at his usual or last known residence; or

(c) where the person to be served is a body corporate or is a trade union or employers' association within the meaning of the Trade Union and Labour Relations (Consolidation) Act 1992 M4 , by delivering it to the secretary or clerk of the body, union, or association at its registered or principal office or by sending it by post to the secretary or clerk at that office; or

(d) where the person to be served is acting by a solicitor, by delivering it at, or by sending it by post to, the solicitor’s address for service.

Textual Amendments

F3 Words in art. 5(b) substituted (5.12.2005) by The Disability Discrimination (Questions and Replies) Order 2005 (S.I. 2005/2703), arts. 1(1), 5(3)

Marginal Citations

M4 1992, c. 52.

Signed by authority of the Secretary of State for Work and Pensions.

Maria Eagle

Parliamentary Under-Secretary of State,

Department for Work and Pensions

Article 2

SCHEDULE 1 E+W+S THE DISABILITY DISCRIMINATION ACT 1995 s.56(2)(a)F4 F5 F6 F7 F8 F9

Textual Amendments

F4 Sch. 1: words “person aggrieved” substituted (5.12.2005) for word “complainant” (in each place) by The Disability Discrimination (Questions and Replies) Order 2005 (S.I. 2005/2703), arts. 1(1), 5(a)

F5 Sch. 1 para. 1: words “Part 2 of the Disability Discrimination Act 1995 (“the Act”) or Part 3 of that Act so far as it relates to employment services or a group insurance arrangement by” substituted (5.12.2005) for words “the Disability Discrimination Act 1995 (“the Act”) by” by The Disability Discrimination (Questions and Replies) Order 2005 (S.I. 2005/2703), arts. 1(1), 5(b)(i)

F6 Sch. 1 para. 1(a)(i): words “(not applicable in a group insurance case)" inserted (5.12.2005) after words “against me” by The Disability Discrimination (Questions and Replies) Order 2005 (S.I. 2005/2703), arts. 1(1), 5(b)(ii)

F7 Sch. 1 para. 1: words “(not applicable in a group insurance case)” inserted (5.12.2005) after words “harassment contrary to the Act” (5.12.2005) by The Disability Discrimination (Questions and Replies) Order 2005 (S.I. 2005/2703), arts. 1(1), 5(b)(iii)

F8 Sch. 1 Notes para. 1: substituted (5.12.2005) by words “(1) Under section 56(3) of the Act (as substituted by the Disability Discrimination Act 2005), this questionnaire and any reply are admissible in evidence in employment tribunal proceedings brought under Part 2 of the Act or under section 21A (employment services) and sections 19 to 21 (discrimination in relation to services and duty to make adjustments) in so far as sections 19 to 21 relate to a group insurance arrangement, of Part 3 of the Act.” by The Disability Discrimination (Questions and Replies) Order 2005 (S.I. 2005/2703), arts. 1(1), 5(c)(i)

F9 Sch. 1 Notes para. 2: words “a deliberate failure,” substituted (5.12.2005) for the words “a failure,” and “the provisions of Part 3 mentioned in paragraph (1).” substituted for the words “Part 3 if the case concerns employment services” by The Disability Discrimination (Questions and Replies) Order 2005 (S.I. 2005/2703), arts. 1(1), 5(c)(ii)

Questionnaire of complainant E+W+S

Article 2

SCHEDULE 2 E+W+S THE DISABILITY DISCRIMINATION ACT 1995 s.56(2)(b)F10 F11

Textual Amendments

F10 Sch. 2: words “(name of person aggrieved)” substituted (5.12.2005) for the words “(name of complainant)” by The Disability Discrimination (Questions and Replies) Order 2005 (S.I. 2005/2703), arts. 1(1), 5(5)(a)

F11 Sch. 2: words “(Include any reasons which in your view explain or justify your treatment of the person aggrieved or which explain, or in a group insurance case justify, any failure on your part to comply with a duty to make a reasonable adjustment).” substituted (5.12.2005) for words “(Include any reasons which in your view explain or justify your treatment of the complainant or explain any failure on your part to comply with a duty to make a reasonable adjustment).” by The Disability Discrimination (Questions and Replies) Order 2005 (S.I. 2005/2703), arts. 1(1), 5(5)(b)

Reply by the respondent E+W+S

Explanatory Note

(This note is not part of the Order)

This Order revokes and replaces the Disability Discrimination (Questions and Replies) Order 1996 which prescribed the form of a questionnaire which could be used by a person (“the complainant”) who considered that he may have been discriminated against by another (“the respondent”) contrary to any provision of Part 2 of the Disability Discrimination Act 1995. The 1996 Order also prescribed a form for the respondent’s reply and laid down specified periods within which the questions had to be served by the complainant in order to be admissible in proceedings before an employment tribunal.

This Order prescribes amended forms for questions and replies in consequence of the changes made to Part 2 and (in respect of employment services) Part 3 of the Disability Discrimination Act 1995 by the Disability Discrimination Act 1995 (Amendment) Regulations 2003 and the Disability Discrimination Act 1995 (Pensions) Regulations 2003 (S.I. 2003/2770), in order to implement Council Directive 2000/78/EC (O.J. No. L 303, 2.12.2000, p.16) so far as it relates to disability discrimination. The relevant changes include:

• • an amended definition of discrimination;

• • a specific prohibition of harassment;

• • extension of the scope of Part 2 of the Act to cover, for example, partnerships;

• • the requirement that the respondent reply to the questions served by the complainant within 8 weeks, in the absence of a reasonable excuse.

Article 3 of this Order prescribes the forms which may be used for the purposes mentioned in section 56 of the Act, as amended. The form set out in Schedule 1 is for use where the complainant considers that he may have been discriminated against or subjected to harassment in contravention of the Act and wishes to question the respondent. The form set out in Schedule 2 is for use by the respondent when replying.

Article 4 relates to the period within which questions must be served on the respondent if they are to be admissible as evidence in proceedings before an employment tribunal. Article 4(a) applies where a question is served before a complaint has been presented to a tribunal. Article 4(a)(ii) extends the period provided for in Article 4(a)(i) in cases where the 3-month time limit for bringing proceedings before an employment tribunal has been extended as a result of regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004. Article 4(b) applies where a question is served after a complaint has been presented to an employment tribunal. It extends the period provided for in the 1996 Order from 21 to 28 days.

Article 5 relates to the manner of service of questions and replies.

No Regulatory Impact Assessment has been prepared in connection with this Order as it imposes negligible costs on business.