Employment relations body Acas has published new guidance on asking and responding to questions relating to discrimination in the workplace.
The guidance is a more informal replacement for statutory questionnaire procedures and will apply from 6 April 2014.
Acas says: “This good practice guidance explains how people, such as jobseekers and employees who think they may have been discriminated against under the Equality Act 2010, can ask questions about what may have happened to them and how people or organisations, such as employers, that receive an information request can respond appropriately.”
Setting out a six-step process for questioners, Acas says: “It is always helpful to resolving a dispute to establish the facts about conduct which may have led to an employee or job applicant thinking that it may be discriminatory.” The six steps are:
- questioner’s and responder’s details: the questioner should set out their name and address and that of the person or organisation they think may have discriminated against them;
- protected characteristic under the Equality Act 2010: the questioner needs to identify which of the nine protected characteristics are relevant (e.g. age, sex etc);
- treatment experienced: the questioner should set out a brief factual; description of the circumstances leading up to the relevant treatment, or lack of it, and what actually happened;
- the type of discrimination experienced: to help the responder answer the questions, the questioner needs to identify the type of discrimination they believe might have occurred;
- why was the treatment discriminatory? The questioner needs to set out why they think the treatment might be unlawful; and
- additional questions: the questioner can ask any appropriate questions of the responder that they consider might be relevant.
Once the six steps are completed, the questions should be sent to the responder in by letter, email, fax or questionnaire. In answering – which responders are not legally obliged to do – Acas recommends they consider three main issues:
- do they agree, partly or disagree with the description of the treatment the questioner alleges they received? They should also set out their own version of events;
- do they consider treatment was justified? It is possible to justify indirect discrimination in certain limited circumstances; and
- other questions: if a responder thinks some other questions are not relevant or unclear, they should clarify their purpose with the questioner.
The guidance also covers asking questions about issues to do with equal pay and contractual terms and conditions.
Acas says: “Resolving disputes in the workplace can be assisted if people can ask and respond appropriately to questions about the issues at the core of the dispute. Sometimes a simple question and answer will clear up a misunderstanding; sometimes an acknowledgement that things have gone wrong or that there may have been discrimination and an offer to put matters right will be all that is necessary to nip a problem in the bud.”
If you are on the receiving end of an allegation about any kind of discrimination, it is imperative that you seek proper legal advice before responding. Your answers to those allegations may be critical in determining whether any award should be paid to the claimant – and how much it may cost you.
Our employment law specialists at Palmers can provide advice and representation to businesses and individuals on all discrimination-related issues. Our HR package also offers regularly updated sample policies for matters such as discrimination.
For more information, please visit our website or contact Lara Murray.