It used to be the case that, before bringing a discrimination claim, an individual who believed they had faced discrimination in the workplace was required to raise relevant questions with their employer. This statutory questionnaire procedure was helpful to potential claimants in deciphering whether they had sufficient grounds to bring a discrimination claim. Under the procedure, an employer was required to respond to the questions raised within a prescribed timeframe. Failure to do so, or evasive responses, could result in the tribunal drawing adverse inferences that the employer had discriminated. Although the procedure gave employers an early chance to rebut allegations of discrimination, the downside was that it became a way of forcing an employer’s hand to offer a settlement. This was due to the time and effort required to answer questions that could span back many years.
Consequently, in 2014, the statutory procedure was repealed. Acas issued guidance in its place. Though the content of the non-statutory guidance was much the same as the statutory procedure, no adverse inferences could be drawn if an employer failed to reply or gave vague responses (although the response, or lack of, could be considered by the tribunal when determining a claim). The guidance had therefore hoped to strike a balance between individuals being able to obtain information to help them determine if they had a claim, and employers not being placed under disproportionate pressure to respond. In reality, although aggrieved employees commonly raise grievances about discrimination, the informal questionnaire procedure was rarely followed. Perhaps for this reason, the guidance was withdrawn.
Acas has now revisited the guidance, publishing new information on its website to assist employers and employees in dealing with questions about workplace discrimination. The procedure Acas suggests is now somewhat different from the old statutory questionnaire. It recommends employees concerned about discrimination send their employer a discrimination statement setting out what happened, who was involved and why they believe it is discrimination (including, where possible, by identifying the type(s) of discrimination suffered and the relevant protected characteristic(s)). The new guidance also provides some examples of appropriate questions that can be included in the statement.
As before, the employer is under no obligation to respond to the statement. However, employers would be well advised to take requests for this information seriously and respond as soon as possible, unless there is a strategic reason not to do so. In the best case, this might resolve issues efficiently without the need for legal action or significant cost. In the worst case, it remains likely that tribunals will look unfavourably on an employer’s unjustified failure to respond to a reasonable discrimination statement and may take this into account when deciding on the merits of a claim. Employers should be careful not to treat an employee who has raised a statement less favourably as a consequence of them having done so, for risk of giving rise to a victimisation claim.
In dealing with any questions raised, employers should therefore take the time to investigate the issues and obtain as much information as possible, confirm the outcome of their investigation to the employee and try to provide them with any possible solutions. Maintaining open communication in this way may assist in building better employee/employer relations moving forward.