In D'Silva v NATFHE (now known as University and College Union) and others UKEAT/0384/07 the EAT considered an appeal from a tribunal's refusal to draw adverse inferences from a respondent's replies to a Race Discrimination Act 1976 questionnaire.

The EAT held that drawing inferences "is not a tick-box exercise". It is only in appropriate cases that, in accordance with the Barton guidelines, inferences can be drawn from a respondent's failure to answer questions or provide information or documents. A tribunal must first consider whether, in the circumstances, the respondent's failure to reply (or the reply provided) supports the inference that it acted discriminatorily in the manner alleged by the claimant. If it does, the tribunal must then consider any explanation given by the respondent for its failure to reply (or its reply) before deciding whether drawing the inference is justified.