Why are formal discrimination questionnaires being abolished?
It is thought that by abolishing the formal statutory questionnaires and making the procedure of asking questions informal, it may open up the communication channels between parties rather than an employer having to formally respond to a ‘questionnaire’.
Is there any guidance for employers in how to respond to an employee’s questions?
ACAS have produced some very useful guidance on asking and responding to questions of discrimination in the workplace. The guidance can be found at http://www.acas.org.uk/media/pdf/m/p/Asking-and-responding-to-questions-of-discrimination-in-the-workplace.pdf.
What types of questions could employers now expect to receive?
If an employee or worker suspected discrimination in the workplace, ACAS suggests they write to their employer or the business concerned (the ‘responder’) giving brief details of the treatment they believe happened (or failed to happen), what protected characteristics they have and explain why they believe they have suffered discrimination. The questioner can then ask questions, for example questions they consider might be important to the events they have described or for statistical information to show how people with their protected characteristic are treated by the responder. A date by which the responder should reply and where to send their response should also be included. Gone is the fixed 8-week reply period.
How should the responder, respond?
With caution! Although ACAS has given a three step guide as to how to respond, we advise employers to tread carefully with their answers, particularly when giving evidence as to whether or not the treatment the questioner has described is ‘justified’.
Do responders need to respond? What happens if they don’t?
Despite there being no legal obligation to answer questions and a reversal of the statutory rule allowing an employment tribunal to draw an adverse inference of discrimination where there is silence, this does not mean responders can simply ignore questions sent to them. An employment tribunal may still take into account the responder’s failure to provide answers or accurate answers when considering issues of discrimination and it may also make an order that a respondent respond to the questions.
Does this new informal process make a difference?
Our advice is simple; do not ignore these questions! Although the formal statutory procedure has been abolished, it is prudent to treat the questions as seriously and as formally as you did discrimination questionnaires. Employers should also remember that subject access requests are still available to would-be claimants under the Data Protection Act 1998 and also information requests can be ordered by the judge through the litigation process – this new question process is just one way a claimant can find out information from their employer.
Does the new process make a difference overall? Although a change in process, perhaps it should be called a “re-branding”. The emphasis on employers to respond to questions in a timely and accurate way has not changed, nor have any potential consequences in failing to.
Prevention is better than cure
Employers are advised to use their equality policies and update them, train their managers on equality and diversity within the workplace and disseminate the information down within teams. Employers who demonstrate clear values on equality and diversity will stand the best chance of defending claims; however questions are put to them.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.