D'Silva v NATFHE [2008] IRLR 412
One ground of appeal concerned whether discriminatory inferences should have been drawn from the manner in which the employer had answered the statutory questionnaire under the Race Relations Act 1976.
HELD A failure to answer a discrimination questionnaire, or a failure otherwise in providing information or documents, does not automatically raise a presumption of discrimination. Failures of that kind are matters from which inferences can be drawn, but only in appropriate cases, and the drawing of inferences from such failures is not a “tick-box” exercise. Such failures are only relevant to the extent that they potentially shed light on the actual discrimination complained of and thus on the “mental processes” of the decision-maker.
It is necessary in each case to consider whether, in the particular circumstances of that case, 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. There will be many cases where it should be clear from the start, or soon becomes evident, that any alleged failure of this kind, however reprehensible, can have no bearing on the reason why the respondents did the act complained of, which in cases of direct discrimination is what the tribunal has to decide.
In such cases time and money should not be spent pursuing the point (Mr Justice Underhill at 38).
