Asking an employer questions about suspected discrimination

The long-established statutory discrimination questionnaire procedure was abolished on 6 April 2014 (ERRA 13 section 66). This procedure allowed potential claimants to ask their employer questions to help decide whether to bring a claim, including questions about pay (see page 193).

However, reps should note that members can still ask their employer questions before deciding whether to issue tribunal proceedings, as guidance from Acas, Asking and responding to questions of discrimination in the workplace, makes clear. In practice, very little has changed as a result of this politically motivated repeal.

The Acas guidance warns that although employers are not legally obliged to answer questions, a tribunal can take into account the employer’s response, or lack of, in any discrimination claim.

European law is also helpful. Member states must ensure that any refusal by an employer to disclose information to workers does not compromise the equality objectives set by the Equal Treatment Directive (Meister v Speech Design Carrier Systems GmbH [2012] EUECJ C-415/10).

The Acas guidance outlines a six-step approach to asking questions and provides a “questioner’s template:

• questioner’s and responder’s details;

• identify protected characteristics affected;

• describe what happened to you;

• explain the type of discrimination you experienced;

• explain why you think what happened was unlawful; and

• additional questions you would like to ask.

Source: Acas, Asking and responding to questions of discrimination in the workplace, available from the Acas website.

www.acas.org.uk/media/pdf/m/p/Asking-and-responding-to-questions-of-discrimination-in-the-workplace.pdf