The importance of the Race Relations Act Questionnaire RR65 is highlighted by the high-profile Chagger v Abbey National plc & Hopkins (2006) UK legal case, where the Employment Tribunal made a finding of race discrimination, which subsequently led to the record-breaking compensation award of 2.8 million. In 2006, Abbey National Santander Group (the Spanish-owned UK high street bank which will soon be re-branded as Santander, and is part of the Banco Santander Group) terminated Balbinder Chagger’s employment, giving redundancy as the reason. Mr Chagger believed, however, that the real reason behind his dismissal was race discrimination. Santander Abbey National Group employed Mr Chagger (who was of Indian origin) as a Trading Risk Controller and paid him about 100,000 per annum. He reported into Nigel Hopkins.
Employees who believe they have suffered race discrimination at work and are considering pursuing legal action may serve a Race Relations Act Questionnaire RR65 upon the employer. The Race Relations Act Questionnaire RR65 procedure is set out in the Race Relations Act (Questions and Replies) Order 1977.
The employee serves his questionnaire upon the employer via form RR65. It contains some standard questions, such as to what extend does the employer concur with the employee’s version of events, what is the employer’s version of events, and does the employer accept that the employee has suffered discrimination (and if not, then why not). The employee may attach his own specific questions to the end of the standard questions.
The serving of a Race Relations Act Questionnaire RR65 is not a necessary step in dealing with the discrimination via formal legal proceedings; it is optional. But, it is a step that gives the employee a unique chance to collect evidence in support of his case (because it permits the inclusion of questions of an exploratory nature), as well as, to obtain further information useful in deciding whether to proceed with legal action or not. Therefore, the employee should seriously consider serving a questionnaire, and design the questions to uncover evidence that proves race discrimination which is known only to the employer, uncover fully the employer’s case, and ascertain which facts are accepted by the employer and which are in dispute.
The employer must respond to the questionnaire in writing within a reasonable time period (8 weeks from the date the of receipt). The employer’s answers can be submitted as evidence before an Employment Tribunal. The employer does not have to answer the questionnaire, and cannot be ordered to respond to it by an Employment Tribunal. But, failure to respond within the time limit and/or ambiguous or evasive responses may be held against the employer. Where an Employment Tribunal believes the employer deliberately and without good reason did not respond within the time limit and/or the responses were evasive or ambiguous, the Race Relations Act 1976 allows the Employment Tribunal to draw any adverse inferences it considers just and equitable, including the inference that the employer committed an unlawful act of discrimination. Thus, an Employment Tribunal could 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, it could decide to take a serious stance on the employer’s failure to respond properly and be persuaded by it, along with other evidence. The chance of the Employment Tribunal drawing adverse inferences will be increased if the employee had asked reasonable questions and had made efforts to chase the employer and encouraged it to respond properly. The employer will not know the consequences of its failures before it faces the Employment Tribunal, at which time it may be too late for the employer to make good any failings. Thus, an employee who avails himself of the questionnaire procedure automatically gains this tactical advantage.
Such was the situation Santander Abbey National had got itself into. The Employment Tribunal found that Abbey Santander had failed in answering Mr Chagger’s questionnaire. Mr Chagger had asked Santander Abbey National to supply details of legal actions of racial discrimination brought against it since 1 January 2001. Abbey Santander responded with 17 citations of incidents. In respect of 6 of them, dating from 2001 and 2002, Santander Abbey National simply stated that the outcomes of the actions were unknown and that it was unable to obtain information regarding the outcomes during the time period in which the questionnaire had to be responded to; no further answers were ever provided to Mr Chagger. The Employment Tribunal concluded that Santander Abbey National’s response was evasive. Its failure to answer the questionnaire, along with the other evidence in the case, satisfied the Employment Tribunal that Mr Hopkins and Abbey National Santander had discriminated against Mr Chagger on the grounds of race in his dismissal.
The serving of a Race Relations Act Questionnaire RR65 by the employee does not in itself start off any legal proceedings; the initiation of legal proceedings requires a separate procedure. If no legal proceedings are ever initiated, then the employee’s questionnaire and the employer’s responses remain a private matter between the employer and employee. If the employee is seriously contemplating legal action based on the other evidence that suggests race discrimination, then serving a Race Relations Act Questionnaire would be appropriate, because the employer’s response may help the employee to decide. But, if the employee does not have any serious intentions regarding legal action, then to serve a questionnaire would be inappropriate because doing so may unnecessarily vex the employer and/or the responses may affect the employee emotionally into pursuing a legal action he didn’t intend to pursue.
The Chagger v Abbey National plc & Hopkins case did not end at the Employment Tribunal stage. In 2008, it was appealed to the Employment Appeal Tribunal (EAT). This year, 2009, the case was appealed to the Court of Appeal (being the second highest court in the land). The Court of Appeal’s List of Hearings showed that the appeal was heard on 7 and 8 July 2009. The Court’s records and judgement of the hearing were not available at the time of writing this article. The 11KBW set of barristers’ chambers had reported that the Court of Appeal hearing was only about compensation (not racial discrimination as well). So, this would seem to suggest that the wrong of race discrimination committed by Abbey National Santander and Nigel Hopkins has been settled by the EAT (it had upheld the original Employment Tribunal’s finding that Mr Hopkins and Santander Abbey National had discriminated against Mr Chagger on the grounds of race in his dismissal).