Abolition of discrimination questionnaire unlikely to mean less hassle
11 April 2014
The recent abolition of a statutory process that allowed people claiming discrimination in hiring to put written questions to an employer, and its replacement by more informal arrangements, is unlikely to produce less hassle for employers and recruiters, employment lawyers tell Recruiter.
Fri, 11 Apr 2014
The recent abolition of a statutory process that allowed people claiming discrimination in hiring to put written questions to an employer before the start of an employment tribunal, is unlikely to produce less hassle for employers and recruiters, employment lawyers tell Recruiter. From 6 April, the discrimination questionnaire has been replaced by more informal non-statutory arrangements.
Discrimination questionnaires, which could be used by a person who felt they had been discriminated against – for example, where they believed they had not been hired because they were from an ethnic minority were abolished on 6 April, and replaced with non-statutory arrangements that follow Acas (The Advisory, Conciliation and Arbitration Service) guidelines.
According to David Green, employment partner at law firm Charles Russell, claimants frequently used the discrimination questionnaire to ask employers questions, not only about the alleged discriminatory incidence but about their wider employment practices and policies.
Green tells Recruiter that an important reason the government abolished the questionnaire was because it believed that employment tribunal claimants often used it primarily “to put employers to a lot of work”.
He explains that because the questionnaire was part of a statutory process, if an employer didn’t answer it, or didn’t deal with the issues properly, “this raised an inference of discrimination”.
“This could then become an issue in front of the employment tribunal,” says Green, which led “to there being a reasonable chance that you might have a decision of discrimination made against you”.
The new arrangements, which follow Acas guidance, do not include a statutory element, says Green, as a result of which “there is no inference of discrimination”.
However, Angela Simpson, employment partner at law firm DWF, tells Recruiter that despite the abolition of the discrimination questionnaire, people who feel they have been discriminated against will still be able to send a letter to the employer, asking the same questions as before.
Simpson says her advice to employers is “you still need to take notice of the questions you get… the worst thing you can do is ignore the question, as later down the road before an employment tribunal it might be quite hard to explain why you ignored it [the question]”.
Green agrees: “If an employer refuses to answer a question, my concern is that this might be taken against them, as it will be a breach of the Acas code and still relevant to employers, and they may not realise that.”
And he adds that he is “not convinced” that the new arrangement will mean “less hassle” for employers.
Denise Keating, chief executive officer of Employers Network for Equality & Inclusion (enei), tells Recruiter that the removal of discrimination questionnaires is unlikely make any difference.
Employment tribunals will apply the same legal test in future and especially since the guidance from Acas now applicable encourages both complainants and responding employers to follow a process that essentially mirrors the previous statutory regime.
Although there is no legal obligation to answer questions, Acas is clear that, according to its guidelines, ‘questions about potential discrimination at work should be dealt with seriously and promptly by the responder. The responder should consider carefully the most appropriate way to respond given the possible implications of any response.
‘If a responder chooses not to answer then a claim may be lodged at tribunal that may have been avoided by providing clear answers in the first place. Further, a tribunal may order that the responder provide answers in any event as part of a claim.’
Discrimination questionnaires, which could be used by a person who felt they had been discriminated against – for example, where they believed they had not been hired because they were from an ethnic minority were abolished on 6 April, and replaced with non-statutory arrangements that follow Acas (The Advisory, Conciliation and Arbitration Service) guidelines.
According to David Green, employment partner at law firm Charles Russell, claimants frequently used the discrimination questionnaire to ask employers questions, not only about the alleged discriminatory incidence but about their wider employment practices and policies.
Green tells Recruiter that an important reason the government abolished the questionnaire was because it believed that employment tribunal claimants often used it primarily “to put employers to a lot of work”.
He explains that because the questionnaire was part of a statutory process, if an employer didn’t answer it, or didn’t deal with the issues properly, “this raised an inference of discrimination”.
“This could then become an issue in front of the employment tribunal,” says Green, which led “to there being a reasonable chance that you might have a decision of discrimination made against you”.
The new arrangements, which follow Acas guidance, do not include a statutory element, says Green, as a result of which “there is no inference of discrimination”.
However, Angela Simpson, employment partner at law firm DWF, tells Recruiter that despite the abolition of the discrimination questionnaire, people who feel they have been discriminated against will still be able to send a letter to the employer, asking the same questions as before.
Simpson says her advice to employers is “you still need to take notice of the questions you get… the worst thing you can do is ignore the question, as later down the road before an employment tribunal it might be quite hard to explain why you ignored it [the question]”.
Green agrees: “If an employer refuses to answer a question, my concern is that this might be taken against them, as it will be a breach of the Acas code and still relevant to employers, and they may not realise that.”
And he adds that he is “not convinced” that the new arrangement will mean “less hassle” for employers.
Denise Keating, chief executive officer of Employers Network for Equality & Inclusion (enei), tells Recruiter that the removal of discrimination questionnaires is unlikely make any difference.
Employment tribunals will apply the same legal test in future and especially since the guidance from Acas now applicable encourages both complainants and responding employers to follow a process that essentially mirrors the previous statutory regime.
Although there is no legal obligation to answer questions, Acas is clear that, according to its guidelines, ‘questions about potential discrimination at work should be dealt with seriously and promptly by the responder. The responder should consider carefully the most appropriate way to respond given the possible implications of any response.
‘If a responder chooses not to answer then a claim may be lodged at tribunal that may have been avoided by providing clear answers in the first place. Further, a tribunal may order that the responder provide answers in any event as part of a claim.’
