Working Theory

by Michael Reed


I do employment law for the Free Representation Unit.


michael at


The burden of proof in government consultations

15 October 2012

The Government’s Reply to its consultation on eliminating discrimination questionnaires takes a stern line.

Very few of the responses, both those opposed to and those in favour of repeal have offered significant quantifiable evidence or specific evidence based on actual situations and outcomes, to support their views.

Presumably, this is why, despite 83% of Responses opposing the proposal, they intend to go ahead.

Given the Government’s desire for hard evidence, it’s useful to look at the material in the original consultation. It refers to two pieces of evidence.

First, a GEO Administrative Burden Reduction Study, done by IFF Research in 2009.1 This estimated that about 9,000-10,000 business completed questionnaires, each taking 5-6 hours to complete.

Second, a Workplace Survey of Micro Businesses conducted by the British Chambers of Commerce. The survey did not include a question about the questionnaire procedure, but the author of the report suggests the questionnaire procedure as one of the areas where an exemption might be appropriate for micro-businesses.

I’ve no problem with the GEO Study, so far as it goes. It tries to estimate the number of surveys being used and how long they take to complete. I suspect that it’s a decent guess – and I’m not aware of any better research.

In fact, as far as it goes, I have no problem with BCC’s Report. It’s an expression of a perfectly common opinion by the report’s author.

But these two reports are a threadbare justification for removing questionnaires. Knowing how many are being answered and how long that takes is one part of a very complex picture. To make a sensible, evidence-based decision you’d want to know all sorts of other information. How many questionnaires lead to a settlement without the need for tribunal proceedings? How many potential claimants put in a questionnaire but don’t bring a tribunal claim?2 How many tribunal cases are significantly affected by a questionnaire or a failure to answer one? And so, and so forth.

The fact that one Policy Advisor from BCC thinks the government should consider eliminating them for micro-businesses, really doesn’t take anyone any further. It certainly doesn’t answer any of these questions.

Given this, I think it’s rich for the government to implicitly criticise organisations like the Law Society, CAB, the Employment Lawyers Association, Unions and so on, who answered the consultation, but apparently didn’t provide ‘significant quantifiable evidence or specific evidence’.3

It’s also a deeply concerning attitude, because of the practicalities of producing significant quantifiable evidence and what that implies for future consultations.

The consultation period on questionnaires ran from 15th May 2012 to 7th August 2012. 12 weeks is long enough for individuals and organisations to work out what they think of a proposal and send those views to the government. It isn’t enough time to carry out new research on something like the questionnaire procedure.

It seems that the government is placing the burden of proof for producing quantifiable evidence on those who answer its consultations. This can’t work, because consultation time-tables don’t give anyone time to produce that sort of evidence.

It’s unreasonable for the government to throw some ideas together, based on a little evidence and some anecdote, then respond to criticism of its plans by saying ‘You haven’t produced the evidence that proves us wrong.’ – unless consultation periods are dramatically extended so that evidence can be gathered.

  1. Regrettably, this is unpublished, although it is available on request from the Government Equalities Office. Even more regrettably, this isn’t made clear in the consultation document, you have to read the Impact Assessment carefully. 

  2. This would also need unpacking. If potential claimants reasonably put in a questionnaire, are then convinced by the answer that they don’t have a claim, and so don’t start tribunal proceedings, this is a good thing. If malicious employees are bombarding people with frivolous questionnaires, this is a bad thing. 

  3. Declaration of interest: I’ve been involved in some of ELA’s consultation responses, although not this one. 

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