ACAS Issues Guidance Following Repeal of Discrimination Questionnaires

ACAS has recently published non-binding guidance on how discrimination questions should be dealt with in the workplace.

As many readers will be aware, statutory discrimination questionnaires were a mechanism which allowed individuals who believed that they may have suffered unlawful discrimination to ask written questions about their treatment and the treatment of comparators, as well as to ask for statistical information about an employer’s workforce.

ACAS has recently published non-binding guidance on how discrimination questions should be dealt with in the workplace. The guidance will apply from 06 April 2014, which is when the statutory discrimination questionnaire is repealed.

Not responding to discrimination questionnaires, or giving vague or equivocal responses could lead to adverse inferences been drawn by an Employment Tribunal.

The abolition of this procedure has therefore been seen as a welcome change by employers, as employees can no longer gain tactical advantages by obtaining information upfront that could potentially assist their discrimination claim. The process of responding could be extremely time consuming and costly for employers.

Despite the changes however, Employment Tribunals will still be able to look at an employer’s response (or lack thereof) to questions raised, when assessing the merits of a discrimination claim, although there is no longer an automatic right to draw adverse inferences.

The ACAS Guidance provides employers with three reminders that should be covered off when dealing with questions about potential discrimination from employees. Employers should:

• Agree or disagree (in part or whole) with the questioner's statement having undertaken 'appropriate investigation'

• State (with reasons) whether in their view the treatment was justified  – e.g. reference to making legitimate business decisions may sometimes be relevant

• Respond to any other questions. Unclear questions should be clarified so that a full response can be provided. If no answer is given, the employer should ideally explain why this is the case.

Much of the Guidance, including the three issues set out above, could be seen as offering no more than common sense advice to employers, and in general reflects the same types of issues previously covered by discrimination questionnaires.

If employers were well versed in dealing with discrimination questionnaires before, it seems likely that they will have no trouble in responding to clear questions.

Overall therefore, it is not unreasonable to suggest that the Guidance reflects nothing more than the Government’s attempts to reiterate the importance of discrimination related issues, at a time when the legal goalposts have moved in the favour of employers.

This is another of the Government’s attempts to reduce rep tape and regulation for employers and therefore should be welcomed by employers.