Answering questions about a discrimination complaint: Acas issues updated guidance

The previous position

Prior to 2014, an individual alleging that they had faced discrimination in the workplace was required to raise relevant questions with their employer before bringing a discrimination claim.

Under this ‘statutory questionnaire’ procedure, an employer was required to respond to the questions raised within a prescribed timeframe. Where employers failed to respond or provided evasive responses, the Employment Tribunal could draw adverse inferences that the employer had discriminated.

Although the procedure was helpful to potential claimants in determining whether they had adequate grounds to bring a claim and gave employers an early chance to refute allegations of discrimination, the key disadvantage was that it became a way of effectively forcing an employer’s hand to offer a settlement. This was largely due to the time and effort required to answer questions about incidents that could potentially span back several years.

As a result of this drawback, the statutory procedure was repealed in 2014 and Acas issued non-statutory guidance in its place. Notably, under the guidance, 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).

The 2014 guidance had aimed to strike a balance between individuals being able to obtain helpful information about their prospective claim, and employers not being placed under disproportionate pressure to respond. In reality, although aggrieved employees commonly raise grievances about alleged discrimination, the informal questionnaire procedure was rarely followed, and the guidance was subsequently withdrawn.

The new guidance

Acas has now revisited the guidance, publishing new information to assist employers and employees in dealing with questions about workplace discrimination.

The guidance recommends that employees concerned about discrimination send their employer a ‘discrimination statement’ that details specific incidents, who was involved, the relevant protected characteristic and why they believe the conduct amounts to discrimination.

While the employer is not legally obliged to answer the questions, employers would be well advised to follow the steps in the updated guidance to try and resolve the potential claims. Employers should take requests for this information seriously and respond as soon as possible unless there is a legitimate reason not to do so.

Employers should also ensure that they do not to treat an employee who has raised a discrimination statement less favourably as a consequence of them having done so, to avoid the  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 in future.

For further information, please follow the links to the respective guidance below:

Employer Guidance                             Employee Guidance