Currently, an individual who thinks they might have been discriminated against by their employer or prospective employer may submit questions to their employer to help determine whether they have a
Currently, an individual who thinks they might have been discriminated against by their employer or prospective employer may submit questions to their employer to help determine whether they have a claim. If the employer refuses to answer any questions within eight weeks of receiving the questions form, or provides evasive or unequivocal answers, then a Tribunal may draw adverse inferences, which in some cases may be enough for the individual to establish a "prima facie" case of discrimination.
These question forms are commonly known as "discrimination questionnaires". Discrimination questionnaires have been a useful weapon in a Claimant's armoury. For those of you who have been on the receiving end of a discrimination questionnaire, you will know how time consuming an exercise it can be to respond fully to a questionnaire, particularly if the questionnaire includes a lengthy list of questions going back over a number of years.
From 6 April, the statutory discrimination questionnaire procedure will be repealed. However, this doesn’t mean that an individual, who feels that they may have been discriminated against in the workplace, will no longer be able to ask their employer questions. A more informal approach will apply.
ACAS has very recently published non binding guidance explaining the new approach, which both employers and individuals can follow. It provides a steer on how to respond to discrimination questions, and also appropriate ways to ask them.
The guidance also sets out the possible consequences of not answering questions; though it won't enable a Tribunal to draw adverse inferences, it could still possibly influence a Tribunal's overall decision. The main points on answering questions are:
1. State whether you agree, partially agree or disagree with the statement the questioner has prepared. If there are events you do not agree with, then appropriate investigation needs to be conducted to enable you to set out your version of events.
2. Are you able to justify the apparent treatment? Could it be justified under the Equality Act 2010?
3. Consider and answer questions appropriately, if you decide not to answer a question then be sure to state reasons for doing so.
The jury is still out as to how effective this new approach will be. The ACAS guidance encourages employers to deal with questions seriously and promptly, but as there is no statutory deadline within which to respond, and as adverse inferences will no longer be drawn for not responding, it is unlikely that employers will treat this with the same level of importance as before. However, our experience is that a clear and well drafted response can sometimes avoid litigation. It can also help to allay concerns and clear up misunderstanding, which can in turn improve employee relations and engagement. Therefore, there will still, very often, be value in responding.
If you do receive questions of discrimination from employees or job applicants and would like advice and assistance in responding, please do contact any member of the Employment Team who would be more than happy to assist.
These question forms are commonly known as "discrimination questionnaires". Discrimination questionnaires have been a useful weapon in a Claimant's armoury. For those of you who have been on the receiving end of a discrimination questionnaire, you will know how time consuming an exercise it can be to respond fully to a questionnaire, particularly if the questionnaire includes a lengthy list of questions going back over a number of years.
From 6 April, the statutory discrimination questionnaire procedure will be repealed. However, this doesn’t mean that an individual, who feels that they may have been discriminated against in the workplace, will no longer be able to ask their employer questions. A more informal approach will apply.
ACAS has very recently published non binding guidance explaining the new approach, which both employers and individuals can follow. It provides a steer on how to respond to discrimination questions, and also appropriate ways to ask them.
The guidance also sets out the possible consequences of not answering questions; though it won't enable a Tribunal to draw adverse inferences, it could still possibly influence a Tribunal's overall decision. The main points on answering questions are:
1. State whether you agree, partially agree or disagree with the statement the questioner has prepared. If there are events you do not agree with, then appropriate investigation needs to be conducted to enable you to set out your version of events.
2. Are you able to justify the apparent treatment? Could it be justified under the Equality Act 2010?
3. Consider and answer questions appropriately, if you decide not to answer a question then be sure to state reasons for doing so.
The jury is still out as to how effective this new approach will be. The ACAS guidance encourages employers to deal with questions seriously and promptly, but as there is no statutory deadline within which to respond, and as adverse inferences will no longer be drawn for not responding, it is unlikely that employers will treat this with the same level of importance as before. However, our experience is that a clear and well drafted response can sometimes avoid litigation. It can also help to allay concerns and clear up misunderstanding, which can in turn improve employee relations and engagement. Therefore, there will still, very often, be value in responding.
If you do receive questions of discrimination from employees or job applicants and would like advice and assistance in responding, please do contact any member of the Employment Team who would be more than happy to assist.