New ACAS guidance for those who experience discrimination
The Thompsons Solicitors blog for UnionHome
In what was disguised as another slashing of ‘red tape’ in the Enterprise and Regulatory Reform Act 2013, the government decided to do away with a vital questionnaire for jobseekers and employees who think they may have been discriminated against by an employer under the Equality Act 2010.
After 6 April, this convenient way of dealing with discrimination in the workplace will be no more. That 83% of those consulted about the questionnaire opted in favour of keeping it clearly meant nothing to this government who are ideologically disposed to cutting protections for workers, regardless of their importance for employee well-being.
The current process allows workers to request information from their employer about their complaint on a standard questionnaire form, which can be sent to the employer any time before they lodge their tribunal claim or within 28 days after lodging it.
If the employer fails to answer the questions within eight weeks or replies in a way that the tribunal considers to be evasive, it can draw an inference of unlawful discrimination.
However, although this questionnaire is being withdrawn, there is obviously nothing to stop potential claimants from putting questions to their employer to further a potential discrimination case. In anticipation of the withdrawal of the questionnaire, ACAS has drawn up a simple six-step template to follow:
- the employee should set out their details and that of the person they want to answer their questions
- the employee should set out the protected characteristic under the Equality Act (race, sexual orientation, religious beliefs etc.) that they consider has been affected.
- the employee should describe what happened to them
- the employee should set out the type of discrimination they have experienced
- the employee should say why they think it was unlawful
- the employee should outline any further questions they would like to ask
Moreover, although tribunals will no longer have a statutory right to draw an adverse inference, there is nothing to stop them from doing so if the employer does not reply or is evasive in their answers.
Potential claimants should, in any event, use the employer’s grievance procedure, or other internal dispute resolution mechanism before lodging their claim with a tribunal. If that doesn’t resolve the issue, ACAS provides a free “Early Conciliation” service which may avoid the need to make a claim.
To read the ACAS guidance, go to: http://www.ACAS.org.uk/media/pdf/m/p/Asking-and-responding-to-questions-of-discrimination-in-the-workplace.pdf