Asking Questions about Discrimination after 6 April 2014

Acas has published guidance on asking and responding to questions about discrimination which will apply from 6 April 2014.

From 6 April 2014, the current statutory procedure for asking questions about discriminatory treatment is being abolished. However, this does not mean that job applicants and employees cannot ask questions if they consider that they have been the victim of discrimination. The guidance explains how they can ask questions and how employers can respond appropriately.

The guidance recommends that the questioner should:

• provide their and their employer’s name and address;
• identify the protected characteristic upon which they believe the discriminatory treatment was based; 
• provide a brief factual description of the discriminatory treatment and the circumstances leading up to that treatment. The description should aim to give key factual details, such as the date, time, place and number of instances of the treatment; 
• describe the type of discrimination they believe occurred i.e. direct, indirect, victimisation, harassment, discrimination arising from disability, failure to make reasonable adjustments;
• describe why they think the treatment was unlawful; and
• ask any additional questions that might be important to the events they feel have affected them. In particular it points out the questioner can ask for statistical information to show how people with their protected characteristics are treated within the organisation.

The guidance recommends that employers responding to questions should:

• say whether they agree or disagree with the description of treatment the questioner alleges they received. The employer should do some appropriate investigation and then set out their version of events; 
• confirm whether they consider the treatment was justified (in indirect discrimination and direct age discrimination cases); and 
• respond to the other questions. If an employer thinks some questions are not relevant or are unclear, they should clarify their purpose with the questioner to help them reply appropriately. If an employer decides not to answer a question, they should explain why.

A tribunal will no longer be able to draw an inference of discrimination from an employer’s failure to reply to a question or from an evasive or equivocal answer. However, the guidance indicates that a tribunal will be able to consider whether and how an employer has answered questions as a contributory factor in making their overall decision on the discrimination claim. It also points out that a tribunal may order an employer to provide such information as part of legal proceedings in any event.

The guidance can be viewed here.

Employers reading the guidance may be forgiven for thinking that not much has changed, as a great deal of it remains pretty similar to the current guidance notes for the statutory questionnaire procedure.  However, the removal of the tribunal's ability to draw adverse inferences from an inadequate or nil response may result in employers taking a more relaxed approach to such questions. Nevertheless, they should bear in mind that answering a question properly at the outset may persuade an employee that they have not suffered discrimination, thereby avoiding a claim.  In addition, they should remember that their answer can still be adduced in evidence in tribunal proceedings and can therefore affect the outcome of a discrimination complaint.