Three decisions in an afternoon. Three lines on the evidence record.
You are Adam Whittaker, Team Lead for Marketing Analytics at Kelmar Group — a 1,200-person UK mixed-sector employer. Thursday afternoon, pre-weekend energy on the floor. You are about to be handed two pieces of information in the same hour. What you decide to do with them is what this module is about.
Kelmar Group is a privately owned, 40-year-old UK employer of 1,200 staff. Mixed operations: 400 retail, 500 hospitality, 300 corporate HQ (Manchester).
Marketing is a 24-person team based at HQ. Adam leads the six-person analytics sub-team, promoted from senior analyst three years ago — his reports include people who were his peers a year earlier.
Kelmar recently professionalised HR under a new HR Director. An anti-harassment policy exists. Managers have had a 90-minute briefing. Line managers have not, to date, received anything resembling scenario-based training.
The Equality Act 2010 s40A preventative duty has applied to Kelmar since 26 October 2024. The Audit Committee has asked HR for documented evidence of how this duty is being met on the floor, not just on paper.
Under s40A, if a tribunal finds sexual harassment has occurred AND the employer failed to take reasonable steps to prevent it, the tribunal may apply a compensation uplift of up to 25%.
Kelmar Group · 22–25 minutes
Kelmar HQ · Manchester
Thursday, 16:42.
§1Thursday afternoon
Thursday, 16:42
Kelmar HQ, Manchester
Thursday, 16:42. The marketing department has been running against a launch deadline for a week. The energy on the floor is pre-weekend — a little loose, a little louder than Tuesday.
You are at your desk. Your old team. Now your reports.
You have not been trained for what is about to happen. Your organisation has a policy. You have skimmed it once, twelve months ago, on a day you were preparing for something else. It was five pages.
§2Emma at the water cooler
Thursday, 16:48
Emma Clarke“Adam — have you got a sec? It's not a big thing.”
She hasn't made eye contact since she started the sentence.
Emma Clarke“Daniel said something at the stand-up this morning. About my jumper. He's done it before — different thing each time, the haircut, the shoes. This morning it was — look, I'm not trying to get him in trouble. I just don't want it to be a thing that keeps happening.”
She waits.
She has framed it carefully. Informal. A clear ask. No demand for escalation.
§Activity — The Banter Line Calibrator
Four comments. Same words.
Before you decide what to do with what Emma told you, it helps to understand why the same sentence lands differently in different contexts. Here is one phrase — “Nice jumper today, Emma.” — said four ways this month. Classify each.
Classify each · 4 items
Select one category for each comment. The phrase is identical. The context is not.
“Nice jumper today, Emma.”
Said at Monday stand-up by Chloe (peer) — once, after Emma complimented Chloe's shoes earlier in the meeting.
“Nice jumper today, Emma.”
Said at Monday stand-up by Daniel — third time this month he has commented on Emma's clothes in front of the team.
“Nice jumper today, Emma.”
Said in a private 1:1 by Daniel after he has closed the meeting-room door — no work context, no team present.
“Nice jumper today, Emma.”
WhatsApp DM at 23:47 on a Friday from Daniel's personal number — Emma never gave him her number.
§3The kitchen door
Thursday, 16:55
You walk to the kitchen to refill your coffee. As you enter, you catch the tail end of something.
Karen Doyle“Raj, you're such an idiot. You can't actually call the channel that.”
Raj Thakkar“Why not? It's my channel. I run the data updates, I get to name it.”
Karen Doyle“You literally named it #token-diversity-hire.”
Raj Thakkar“It's accurate and it's funny. Two things I bring to this team.”
Karen shakes her head, still half-laughing. You fill your coffee. As you turn, you see Martin from Finance in the doorway. Martin looks disapproving.
Martin Greaves“You should probably do something about that.”
Martin doesn't explain what ‘that’ is. He walks off.
You have two pieces of information now. They do not resemble each other. The law does not help you sort them in advance. Your handling of both will.
§Activity — The Kitchen Channel
The full exchange, in writing.
Martin said you should ‘do something about that.’ Martin only heard the last two lines. Here is the full Teams thread from that day's kitchen conversation — what Raj and Karen actually said across the afternoon. Classify each message.
Classify each message · 6 items
Tag each message with the category that best fits. Over-classifying as harassment costs points — the EHRC guidance treats disproportionate response as itself a failure.
#token-diversity-hire· Thursday
Karen
14:02
raj the slides are through, you want to push to the channel?
Raj
14:03
legend. pushing to #token-diversity-hire now
Karen
14:03
STOP 😂
Karen
14:04
mate though — you might want to think about renaming the channel, HR crawl these
Raj
14:05
if HR have an issue with a joke I'm making about myself they can take it up with me directly
Raj
14:05
it's accurate and it's funny. two things I bring to this team
§4Decision — The first response
Thursday, 16:58
Emma is waiting for your response. What do you do?
It's 16:58. The team is filtering out toward the weekend. Emma is standing in front of you, holding a notebook against her chest. Your response has to come out of your mouth in the next few seconds.
The s40A preventative duty does not tell you which option to pick. It tells you that whichever you pick becomes evidence.
§What happened next
The response
Emma Clarke“Thanks, Adam. Appreciate it.”
She goes back to her desk. You open a note, date it, and write two paragraphs: what she said, what you said, what you agreed. You file it where only you can see it.
For Emma: she was heard. She retains control over whether this escalates. She has a manager who took the information seriously.
For Daniel: nothing has been done to him based on a one-sided conversation. If his behaviour is corrected going forward, he is never formally accused.
For the organisation: you have created a dated, written record of an informal complaint being handled. Aggregated across a workforce, this is what reasonable steps under s40A looks like — handling, not just policy.
What this choice evidences
Under section 40A of the Equality Act 2010, an employer must take reasonable steps to prevent sexual harassment. The EHRC Technical Guidance (September 2024) treats contemporaneous written records of informally-handled complaints as core evidence that the duty is being discharged in practice, not just on paper.
The key feature of this response is that it preserves the complainant's agency while creating the written artefact that will later evidence the organisation's handling. Neither element alone is sufficient. Both together are the baseline.
§What happened next
The response
Emma Clarke“Oh — no, I don't want it to go formal. That's not what I'm asking for.”
She looks uncomfortable for the first time in the conversation. You have just overridden the framing she carefully built.
For Emma: her explicit ask was overridden. She is now weighing whether she can trust the way she is heard in this organisation.
For Daniel: a formal process would have landed on him without the informal conversation first — procedurally heavier than the facts warrant at this stage.
For the organisation: formalisation without the complainant's consent can itself be a procedural vulnerability. The EHRC guidance emphasises proportionate response — matching the formality of the response to the formality of the complaint.
Why this is not the strongest response
The EHRC Technical Guidance (Step 6, handling complaints) treats the complainant's choice of route as a material factor. Formalising against a clearly informal disclosure risks the process being challenged later on procedural grounds — by either party.
Informal handling, properly documented, often discharges the reasonable-steps duty as effectively as formal process, and sometimes more so. What matters is the record, not the ritual.
§What happened next
The response
Emma Clarke“Yeah. OK. Maybe you're right.”
She goes back to her desk. You go back to yours. No note is written. Daniel leaves at 17:45, whistling.
For Emma: she was told to handle it herself. If the behaviour continues, she now has evidence — in her own memory — that her line manager declined to act when she raised it informally.
For Daniel: his conduct is unaddressed. He is likely to repeat it.
For the organisation: where a manager tells a complainant to manage the situation themselves, the reasonable-steps defence is materially weakened. The EHRC guidance treats this specific handling pattern — reliance on the complainant to resolve it, or to formalise before the organisation acts — as the clearest indicator that prevention has not been embedded.
Why this is the weakest response
Where a tribunal finds sexual harassment has occurred, it will then consider whether the organisation took reasonable steps to prevent it. Conversations in which a manager declines to act on an informal disclosure are treated as direct evidence that the duty was not being discharged — and can trigger the compensation uplift of up to 25% under s40A.
The well-meaning framing — ‘it's probably a misunderstanding, have a quiet word first’ — is the single most-cited failure mode in UK tribunal findings on the preventative duty. It transfers the duty from the employer to the complainant.
§What happened next
The response
Adam Whittaker“Emma — I want to handle this well. Let me speak to HR first thing tomorrow on the best route. I'll come back to you by end of Friday with options. Is that alright?”
Emma Clarke“Yeah. That's fine. Thanks.”
For Emma: she has not been given an immediate answer, but she has been given a credible timeline and a commitment.
For Daniel: nothing has been done to him yet; procedural fairness preserved.
For the organisation: this creates the same written-record benefit as option A, with the added strength of an HR loop-in — escalation used correctly, not as a dodge.
A defensible middle path
Consulting HR within a short, defined window — rather than deflecting indefinitely — is consistent with the EHRC guidance on handling complaints. The key is the explicit timeline: ‘by end of Friday’ is a commitment that can be evidenced; ‘I'll come back to you’ without a timeline is a deflection.
This option scores below option A only because it introduces a day's delay where a same-day informal handling would have been equally defensible and faster. Both are solidly within the reasonable-steps standard.
§Activity — The two-paragraph note
Write the note.
You told Emma you would note the conversation. Now do it. This note is the artefact that — aggregated across a workforce — becomes the reasonable-steps defence file. Write it as it would actually sit on the record.
The note · Your own words
Write 4–6 sentences. Then tick the criteria below that you included. Honour-graded — expert model note revealed on submit.
Private note · Adam WhittakerThursday, 14 Nov 2024 · 17:02
Tick what your note includes · 6 to aim for
Date and time of the conversation, to the minute
Where it took place (specific location)
Emma's words, in quotes — not paraphrased
Her explicit ask (what she said she wanted to happen)
What you said back to her, also in quotes
What you have agreed will happen next (or not)
Your personal opinion on whether Daniel is a problem
A summary of Kelmar's harassment policy
Your assessment of Emma's likely motive for raising it
Model note (for comparison):
“Thursday 14 Nov 2024, 16:58 — by the water cooler near marketing pod 3. Emma Clarke approached me privately. She said: ‘Daniel said something at the stand-up this morning. About my jumper. He's done it before — different thing each time, the haircut, the shoes... I'm not trying to get him in trouble. I just don't want it to be a thing that keeps happening.’ I said: ‘Thanks for raising it. I appreciate that. I'll keep an eye on how things go and check in with you next week.’ We agreed no formal action at this stage. She asked that the conversation stay between us unless the pattern continues. — AW”
§5Back at your desk
Thursday, 17:10
You sit down. The screen goes to sleep. You are now thinking about the kitchen.
You remember: Martin said ‘you should probably do something about that.’ He didn't say what ‘that’ was.
You replay the exchange in the kitchen. Raj named the channel. Karen laughed. Raj made a joke about his own presence in the team. Martin was in the doorway for the last two sentences.
§6Decision — The kitchen conversation
Thursday, 17:15
What, if anything, do you do about what you overheard?
The information you have is partial. You walked in on the tail end. You do not know whether there was a setup that explained the line differently. You do know Raj named the channel himself, and both people in the conversation were friends, laughing.
Martin's reaction is its own data point — an observer was uncomfortable. The law does not pivot on Martin's comfort. It pivots on the target. The target, in this case, is the person telling the joke about himself.
§What happened next
The response
Adam Whittaker“Good weekend planned?”
Raj nods, earbuds already in. You walk on. Nothing is noted. The Teams channel keeps its name.
For Raj: he is trusted to make his own jokes about his own identity without a manager policing it. He is not singled out or embarrassed.
For Karen: she is not implicated in something she had no part in other than laughing at a friend's joke.
For the organisation: you correctly identified that not every overheard comment requires intervention. Disproportionate action — as the EHRC guidance on proportionate response warns — can itself create hostility, particularly toward the minority employee being ‘protected.’
The s26 test applied
Harassment under section 26 of the Equality Act 2010 requires unwanted conduct related to a protected characteristic, with the purpose or effect of creating a specified hostile environment for the person affected.
Raj's joke about his own presence in the team, told by him, to a friend who laughed — does not satisfy the ‘unwanted’ element for the person whose characteristic is at issue. An uncomfortable observer does not change this. The law pivots on the target, not the witness.
§What happened next
The response
Adam Whittaker“Mate — can I have a word? About the channel name. You know how it is, someone might take it the wrong way.”
Raj Thakkar“The wrong way.”
Adam Whittaker“Yeah — I'm just saying. Maybe rename it.”
He nods. Says thanks. Renames the channel #marketing-data by the end of the day. He doesn't sit with Karen at lunch on Monday.
For Raj: he has been tone-policed by his manager for a joke about his own identity. His relationship with you has shifted. He will raise fewer things in future.
For Karen: no direct impact, but the dynamic of the team has changed.
For the organisation: well-intentioned over-correction has created exactly the ‘chilling effect’ the EHRC guidance warns against. The bar you applied is harsher than the law requires, and it has suppressed a minority employee's voice.
Over-correction is also a failure
Reasonable steps are proportionate steps. The EHRC guidance explicitly flags that responses going beyond what a proper reading of s26 requires can damage the workplace culture they are meant to protect.
A manager's defensible instinct is to do something. The skill is in calibration — reading whether the conduct before you requires action, and what form of action is proportionate to the conduct, not to the manager's discomfort.
§What happened next
The response
You send the team an email the next morning: subject line ‘A reminder on inclusive language at work.’ It references the harassment policy, reminds everyone of the reporting route, and thanks ‘everyone who makes Kelmar the kind of place where this matters.’
By lunchtime, three colleagues have asked — privately — what happened. Raj has stopped using the team channel. Karen has DM'd you to ask if she did something wrong.
For Raj: identified by everyone on the team who was in the kitchen on Thursday as the subject of the email. His self-deprecating humour has become a managerial correction artefact.
For Karen: anxious, asking for reassurance she shouldn't have needed.
For the organisation: the performative all-team email is the most damaging of the options. It creates the appearance of action while producing no contemporaneous record of the actual incident, no correction applied proportionately, and a team-wide chilling effect.
The performative response problem
Where a manager responds to a specific observed interaction with a team-wide communication, two things happen. First, the affected individual is often identifiable to colleagues despite anonymisation. Second, the manager has created the appearance of handling without the evidence base that would actually discharge the s40A preventative duty.
Tribunals have been clear: visibility is not handling. A dated, specific, proportionate record of what was observed and what was done is worth more in evidence than any all-team email.
§What happened next
The response
You log a brief note to HR via the internal portal: ‘Overheard exchange between two team members re. a self-named Teams channel. Appeared to be in-joke between friends; no target; flagging for awareness only.’
HR acknowledges. No action is requested or taken. The note sits in the informal record — available if a pattern emerges, invisible otherwise.
For Raj: not tone-policed; no change in behaviour expected or required.
For Karen: no impact.
For the organisation: a low-friction informational log that creates the record without imposing a correction. Defensible without being heavy-handed.
The ‘flag for awareness’ pattern
The s40A preventative duty is most often discharged through the pattern of an organisation being able to demonstrate it notices and records things, not through single dramatic interventions.
A brief informational note — especially when the manager is genuinely uncertain whether anything has happened — adds to the evidence base without any corresponding cost to the individuals involved. It scores slightly below the ‘no action’ option only because the incident as observed did not, on a careful reading, require even a log entry.
§7The afternoon hasn't ended
Thursday, 17:20
You look up. The office is half-empty now. Daniel is still at his desk, on the phone, laughing. The door to the stairwell opens and closes. Someone wishes someone else a good weekend.
You have handled Emma's disclosure. You have considered the kitchen. There is a third decision waiting, and it is about time, not about information.
§8Decision — Timing
Thursday, 17:22
What do you do about Daniel specifically, and when?
Your handling of Emma's disclosure will be partial until Daniel is spoken to. The question is whether that happens tonight, tomorrow, next week, or formally. Each path has costs.
The preventative duty reads time as a variable. Every day a behaviour goes uncorrected is a day it can recur. Every day a response happens before evidence is assembled is a day a process can be procedurally challenged.
§What happened next
The response
Adam Whittaker“Dan — have you got two minutes before you head off?”
Daniel Fraser“Yeah, mate, what's up?”
Adam Whittaker“Something's come up this afternoon about stand-up comments. I'm not going through it line by line. I want us to be mindful of how comments about colleagues' appearance land. It's the pattern, not one thing.”
Daniel Fraser“Did she say something? I didn't — look, I didn't mean anything by it.”
Adam Whittaker“I know. But we need the pattern to stop here. Appreciate you hearing this.”
Daniel nods. It lands. You write a third note, dated.
For Emma: her disclosure has led to direct correction without exposure. She did not have to file a grievance to get behaviour changed.
For Daniel: he has a clear signal before anything formal lands. He has the chance to change without a disciplinary record. Most people, given this signal, do.
For the organisation: the shortest path from ‘a staff member is uncomfortable’ to ‘behaviour corrected’ has been taken, documented, and is now evidence of the duty being discharged in practice.
Same-day, proportionate, documented
The EHRC Technical Guidance (Step 6) calls this pattern ‘good practice’ — a proportionate informal conversation held in time, framed as expectation-setting rather than accusation, with a written record.
The three notes you have now made — Emma's disclosure, your commitment to her, and your conversation with Daniel — together constitute a reasonable-steps record. If a formal complaint ever followed, this file would stand up. If it does not follow, the file discharges the duty silently.
§What happened next
The response
Daniel leaves at 17:45, whistling. Adam leaves at 18:10.
On Monday, Daniel comments on Emma's coat. On Tuesday, her shoes. On Wednesday, the shoes again, and adds a line about her perfume. Wednesday evening, Emma emails HR a formal grievance. Paragraph three reads: ‘I told Adam on the Thursday; he said we should wait until I made a formal complaint.’
By Friday morning, HR has asked Adam for his own statement. He has no written record of his Thursday conversation with Emma.
For Emma: she raised it once informally, her manager did nothing, the behaviour continued, and she has had to escalate.
For Daniel: his behaviour escalated because no one corrected it. He now faces a formal process on a pattern he might have corrected in one conversation.
For the organisation: the manager's direct words — ‘wait for formal complaint’ — will appear in the grievance documentation. A policy that exists on paper but is not acted on when information is in the room is the single most-cited failure in tribunal findings on the preventative duty. Uplift risk: elevated to maximum.
Where the uplift comes from
Under s40A, a tribunal considering a sexual harassment claim may apply a compensation uplift of up to 25% where it finds the employer did not take reasonable steps to prevent the harassment. The evidentiary question is not whether the employer had a policy — almost every employer does — but whether that policy was acted on when relevant information was in the line manager's hands.
The Lidl GB 2025 tribunal made this exact finding: where managers relied on employees to submit formal complaints before acting, the reasonable-steps defence failed. The company entered a legally binding agreement with the EHRC shortly afterward.
§What happened next
The response
You email HR that evening requesting a formal disciplinary be opened against Daniel based on what Emma told you. The HR response on Friday morning is measured: ‘Thank you for flagging. Before a disciplinary can be opened, we need the complainant's documented account and her informed choice of route. Has Emma consented to a formal process?’
You realise she has not. You have skipped a step.
For Emma: her explicit informal framing has been overridden; she may now be asked to ‘confirm’ a formal process she did not request.
For Daniel: if the process proceeds, he will face a formal allegation before any proportionate informal correction was attempted.
For the organisation: procedurally rushed into a formal process without the complainant's consent or an informal step attempted, both Daniel (if disciplined) and Emma (if re-interviewed formally) may challenge the handling.
Skipping the informal step
The EHRC guidance on handling complaints treats the progression from informal to formal as a material feature of proportionality. Going straight to a formal process on an informal disclosure — without the complainant's clear consent — creates procedural vulnerability on both sides.
This is not a hypothetical: tribunals have set aside findings where the employer failed to follow its own grievance policy's informal-first pathway. Rigour on procedure cuts both ways.
§What happened next
The response
You email HR at 18:30 Thursday with a short factual account of Emma's disclosure, your response, and the proposed next step. HR replies first thing Friday with an agreed approach. By Friday afternoon, you have had the conversation with Daniel, with HR copied on the outcome summary.
Emma is updated by Friday end of play. Daniel is corrected. The record is built.
For Emma: kept informed, kept in control of informal route, correction applied within days.
For Daniel: informed, corrected, not disciplined — the best available outcome consistent with the facts.
For the organisation: a slightly longer path than option A, but with a stronger HR loop-in that creates two corroborating records. Defensible, proportionate, evidenced.
The value of the HR loop-in
Option A (same-day informal) and this option (48-hour HR-aligned) both score strongly under the s40A standard. The small advantage of option A is timeliness; the small advantage of this option is the corroborated record.
In organisations where line-management confidence on these situations is still developing, the HR loop-in is often the better pattern during that learning period. As confidence develops, same-day handling becomes the norm.
§Three decisions, one record
Three decisions, one record
Your evidence score
0
—
Three decisions in an afternoon. Each one defensible in a different way. Each one, taken together, is a reasonable-steps story — or it isn't. Every manager in this country, every week, is making decisions like these. Most of them haven't been trained to make them. That's what this course is for.
What to carry forward
1. Respecting a complainant's agency is itself a reasonable step. Not every disclosure needs a formal process. But every disclosure needs a documented response.
2. Proportionality cuts both ways. Under-action is a failure. Over-action — tone-policing, over-reaching, performative responses — is also a failure.
3. Same-day is better than same-week. Every day a behaviour goes uncorrected is a day it can escalate. Quiet, measured, same-day conversations are the shortest path to ‘reasonable steps taken.’
How this afternoon affected each party
Emma Clarke
Daniel Fraser
Raj Thakkar
Kelmar Group
Module 2 picks up four weeks later, when a different manager receives a different first report — and the stakes are no longer informal.
