Asking an employer questions about suspected discrimination

The long-established statutory discrimination questionnaire procedure was abolished on 6 April 2014 (ERRA 13 section 66), despite widespread opposition. This procedure allowed potential claimants to ask questions of the employer to help decide whether to bring a claim, including questions about pay (see page 198).

However, reps should note that this change does not stop a claimant asking questions of their employer before deciding whether to issue tribunal proceedings, as new guidance from Acas, Asking and responding to questions of discrimination in the workplace , makes clear. In practice, very little is likely to change following this politically motivated repeal.

The Acas guidance warns that, although employers are not legally obliged to answer questions put to them, a tribunal can still take into account its response, or lack of, when deciding the discrimination claim.

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

The new Acas guidance outlines the following 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;

• why do you think what happened was unlawful; and

• additional questions you would like to ask.