The statutory discrimination questionnaire procedure has been abolished. While this may be a relief to employers, they can still be asked questions about discrimination in a more informal way.
Whilst there is no longer a statutory obligation to answer these questions, a tribunal will look at whether (and how) an employer has answered questions as a contributory factor in making its overall decision on a discrimination claim; i.e. it can draw an adverse inference from a refusal to respond or an inadequate response.
In addition, tribunals may also order an employer to provide such information, and individuals are free to ask for the same kind of information through the subject access request procedure under the data protection legislation.
ACAS has published good practice guidance on asking and responding to questions of discrimination and equal pay in the workplace.
Practical steps for employers:
- Do not ignore any questions about discrimination, in whatever format they are sent, eg in an email.
- Make sure that care is taken to provide as full answers as possible and that responses are sent promptly.
ACAS early conciliation
ACAS early conciliation (“EC”) is available on a voluntary basis from 6 April 2014 and will be mandatory for claims presented on or after 6 May 2014.
This means that for most types of employment dispute, a prospective claimant must first notify ACAS of their intention to bring a claim by completing an EC form to see whether it can be conciliated.
Although there is no obligation for either party to conciliate, the claimant must contact ACAS and obtain an EC certificate from them before they can proceed to the tribunal. Claims can also still be conciliated after they have been lodged.
When a prospective claimant contacts ACAS this “stops the clock running” for the purposes of time limits for bringing claims. ACAS has one calendar month from the date of receipt of the claimant’s completed EC form to promote a settlement between the parties.
This can be extended by two weeks if the conciliation officer considers there is a reasonable prospect of settlement, provided the parties agree. If settlement is not reached, the claimant has one month from when the EC certificate is issued by ACAS in which to submit their claim.
This effectively gives claimants who submit their EC form towards the end of the three month limitation period up to almost an extra three months in which to file their claim.
Financial penalties for employers
Tribunals now have the power to order a losing employer to pay a financial penalty to the government in respect of claims presented on or after 6 April 2014 where it decides the employer’s breach has one or more “aggravating features”.
The “aggravating features” are not defined, although the government consultation referred to the employer’s breach involving unreasonable behaviour such as negligence or malice.
The minimum penalty will be £100 and the maximum will be 50% of any financial award up to £5,000 per claimant. However, if the employer pays 50% of the penalty within 21 days it will not have to pay any further penalty.
Emilie Bennetts is an associate at Charles Russell LLP
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