How should my business deal with questions from my employees about discrimination at work?

ACAS has recently published new information on its website to help employees and employers in asking and answering questions concerning discrimination in the workplace. This article considers this new guidance and the key take away points for employers and HR managers. 

A History Lesson

For those of you blessed with good memories, you may recall the statutory discrimination questionnaire which allowed a person who thought that they have been discriminated against, to obtain information from their employer or prospective employer via a questionnaire.

These questionnaires were, understandably, unpopular with employers - not only were they incredibly time consuming, but Tribunals were entitled to draw adverse inferences from a failure to answer the questions within the time limit or at all. Therefore, many signed a huge sigh of relief when the discrimination questionnaires were repealed in 2014, and we all reverted, instead, to non-statutory ACAS guidance to assist where required.

This relaxed attitude, may however be about to change. In a move that has largely gone under the radar, ACAS has updated their guidance on discrimination to include a section on asking questions of employers with regards to discrimination. So what does this mean for employers? Below we cover some of the key points on the new guidance and how employers should be dealing with the changes.

What is the aim of the new guidance?

The guidance, which can be found here, endeavours to encourage both employees and employers to try and resolve their issues informally through a question-and-answer process prior to (and hopefully instead of) instigating a claim in the tribunals. This is especially important considering the severe delays we've been experiencing in the processing and hearing of claims in the tribunals.

Initiating the process

To initiate the question-and-answer process, the aggrieved employee would need to send their employer a statement outlining what has occurred to lead them to feel that they have been discriminated against and a list of questions for the employer to answer about what happened.

What should the employee’s statement contain?

The guidance states that the employee’s statement should contain:

• the details of those involved,
• what specifically happened and
• what form of discrimination they feel they have experienced.

As noted above, the statement will also include any questions that the employee will have, for example, ‘why did you not give me the promotion?’ or ‘how many female or disabled candidates have been employed in the last 5 years?’.

How should the employers respond?

The guidance tells employers to take employee’s requests seriously and that they should reply as soon as possible. Employers should note that there is no requirement that they must reply to the questions contained within the statement, however it must be remembered with caution that failure to reply will likely result in a grievance and ultimately a claim to an employment tribunal. If the case does progress to the tribunal, the judge will examine how (and if so, to what extent) the employer answered the questions. If the employer did not answer the questions, or answered them in a limited or obfuscated way, this will clearly be detrimental to how reasonable the employer is in the eyes of the judge.

The steps to follow in responding to the statement can be found here but they can be summarised as:

1. Read and investigate the employee’s statement and questions, identifying the alleged type of discrimination.
   
   
2. Consider the response to questions carefully and send the answers to the employee as directed, as soon as possible and agree an extended deadline where it is unreasonable to meet the employee’s set deadline.
   
   
3. Discuss with the employee or their representative how to resolve the dispute.
   
   
4. Keep a clear and accurate record of how you respond.

What does this mean for your or your business?

The guidance is beneficial for employers in that it seeks to achieve a dialogue between employer and employee prior to/instead of the commencement of a grievance or legal proceedings. This is beneficial for employers as it may allow them to remedy matters before facing formal legal action. However, employers will need to be careful as to the content of any response in terms of admitting liability, which may prejudice any defence to a claim for discrimination if the question-and-answer process does not resolve matters.

What do you need to be doing now?

Businesses should ensure that their HR teams and line managers can identify such questions raised by employees and ensure they up to date on the latest ACAS guidance.

Employers should also check their internal policies including their policies on discrimination, bullying and harassment to ensure that it clearly states who the employee is to send their statement to, for example the HR team or their line manager.

If your businesses has received a statement from an employee concerning alleged discrimination or you need assistance in reviewing your workplace polices, please get in touch with a member of our experienced Employment Team. 

Recommended reading

Click here to read the full ACAS guidance. 

These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.