ACAS guidance on replacement of discrimination questionnaire

From 6 April 2014, discrimination cases will no longer be subject to the statutory questionnaire process as it will be abolished.

The right that predominantly benefitted employees to delve into their employers’ business information and ask for disclosure of information relating to any previous claims made against them, has always had its usefulness disputed. An adverse inference could also have been made for non-cooperation on an employer’s part.

The discrimination questionnaire procedure will be replaced by an informal request for more information, merely subjecting the employer to criticism from the Employment Tribunal (as opposed to an adverse inference of discrimination). ACAS has provided some incredibly useful guidance for employers on how to respond to such requests, namely a six step process which can be summarised as follows:

• Step 1 – Questioner’s and responder’s details
  The questioner should set out their name and address and that of the person or organisation and others who the questioner thinks may have discriminated against them.
• Step 2 – Protected characteristic under the Equality Act 2010
  The questioner needs to identify which protected characteristic(s) may have been the subject of the unfairness they’ve experienced. There are nine protected characteristics. It may well be that more than one protected
  characteristic is relevant to the treatment experienced.
• Step 3 – Description of treatment
  The questioner should set out a brief factual description of the treatment, or lack of treatment, or the failure to make a reasonable adjustment in the case of a disabled person to which the complaint relates and the circumstances leading up to that treatment.
• Step 4 – Type of discrimination questioner experienced
  To help the responder answer the questions, the questioner needs to identify the type of discrimination they believe might have occurred.
• Step 5 – Why does the questioner think their treatment was discriminatory?
  This step allows the questioner to set out why they think the treatment or disadvantage described in Step 3 above might be unlawful. It can help identify some of the areas of disagreement and can help the responder address the concerns more accurately.
• Step 6 – Additional questions about treatment
  The questioner can ask any appropriate questions of the responder that they consider might be important to the events they feel have affected them.