Worker Protection (Amendment of Equality Act 2010) Act 2023 · Module 2
What happens in the first 72 hours often decides what the tribunal sees two years later.
You are Rachel Adeyemi, HR Business Partner for Kelmar Group's retail division. Tuesday morning, coffee in hand, your phone rings. A store manager you like and trust is calling about a trainee on his team who disclosed something on Monday night. What you decide in the next fifteen minutes will either become a reasonable-steps defence file entry, or evidence that the duty was not being discharged in practice.
Kelmar HQ, Manchester
HR floor. Tuesday morning. A phone on a desk starts to ring.
Open-plan, west-facing light. Half the team is in. The other half is on the train. A takeaway coffee cup is still warm.
Kelmar HQ, Manchester
Tuesday, 09:15. Second sip of coffee. Your laptop is still booting. Stuart's name comes up on your mobile — he's called once before this year, about holiday cover.
This one is going to be different.
Stuart has delivered a disclosure he wasn't trained to take. Tom has asked for confidentiality. The respondent is Stuart's skip-level and Tom's mentor. You have about sixty seconds to say something measured.
The 72-hour note is the anchor artefact. A well-structured note separates the evidential (what happened, named, verbatim) from context (the reporter's framing, paraphrasable) from reporter wellbeing (Stuart's own state — a separate HR duty).
Over-tagging as ‘evidential’ is its own failure — it dilutes the part of the file a tribunal treats as primary evidence.
Replay each clip · tag each one
Click the play button on any clip to hear it again. Pick a category. Submit when all three are tagged.
“Rach — sorry, have you got two minutes? I need to talk you through something and I'm not going to get through the day otherwise.”
“Tom Elliott on my team — trainee. He came to me last night after close. He's disclosed something about Diane Pritchard. Comments over three months. A thing at the regional offsite on Friday — hotel lobby, he says she — look, he says she tried it on. Physical. He's asked me to keep it quiet.”
“I've been awake since four. I don't know what I'm supposed to do next. I'm calling you because I don't know what I'm supposed to do next.”
The tags you just placed will sit on the record. What you said in the moment determines whether Stuart finishes the call — and whether Tom's disclosure reaches a proper investigation or dies on this phone line.
Active listening in a first-response call is not neutral. It is a deliberate set of verbal moves: reflect, clarify, validate, or (wrongly) close down. Pick one response per moment. No do-overs.
Three moments · one response each
Play each clip to re-hear Stuart. Choose the active-listening response you would have given. Submit when all three are chosen.
“Rach — sorry, have you got two minutes? I need to talk you through something and I'm not going to get through the day otherwise.”
“Tom Elliott on my team — trainee. He came to me last night after close. He's disclosed something about Diane Pritchard. Comments over three months. A thing at the regional offsite on Friday — hotel lobby, he says she — look, he says she tried it on. Physical. He's asked me to keep it quiet.”
“I've been awake since four. I don't know what I'm supposed to do next. I'm calling you because I don't know what I'm supposed to do next.”
Stuart needs an answer. Your tone decides whether he thinks calling you was the right call — and what he does about Tom before end of shift.
The s40A preventative duty doesn't pick your words. It just makes sure whichever words you pick land on the record.
For Tom: you preserved his agency. He's about to find out the person he disclosed to handled it with care.
For Stuart: he has a specific next step and a line he must not cross. The ambiguity he's been holding since 4am is gone.
For Diane: nothing has been done to her on a second-hand account. Any process that follows will be procedurally fair.
For the organisation: a dated record now exists of an informal disclosure being handled. Section 40A calls this the baseline, not the ceiling.
The EHRC Technical Guidance (Step 6) treats the first 72 hours after a disclosure as load-bearing for everything that follows. The most valuable artefact in a reasonable-steps defence file is a contemporaneous dated note of who said what and what was agreed.
Not instructing Stuart to act, and leaving Tom to choose his own route, keeps every downstream option open. Foreclosing either too early is what later unravels.
For Tom: before he's even spoken to you, he learns your first response was to suggest a chat between his line manager and the person he disclosed against. He bypasses both of you on Thursday.
For Stuart: the advice lands in Tom's grievance as your advice. He carries it for the rest of the process.
For Diane: a ‘quiet word’ would have tipped her off and contaminated any fair process.
For the organisation: reporter-to-respondent before complainant-to-HR is the specific pattern EHRC guidance and tribunals treat as a failure of the preventative duty. Uplift risk: maximum.
The Lidl GB 2025 tribunal found it a material failure that management relied on informal handling between reporter and respondent before the complainant was offered any formal route. ‘Have a word, see if it settles’ is what turns a complaint into a grievance and a grievance into a tribunal.
Nothing about it is illegal. Nothing is even obviously wrong in the moment. It just doesn't discharge the s40A preventative duty, because it transfers the duty from employer to complainant.
For Tom: his disclosure has leaked, he didn't consent, and he hasn't spoken to HR yet.
For Stuart: he's run an informal investigation without authority and taken witness accounts that are now contaminated.
For Diane: any formal process is compromised by the informal witness-gathering.
For the organisation: informal investigation by a line manager — outside the procedural framework — is a direct route to any subsequent finding being challenged on procedural grounds.
Formal complaints are investigated by trained investigators under terms of reference, with witnesses interviewed under documented conditions. Informal fact-finding by the line manager contaminates that in two ways: it primes witnesses before formal interviews, and exposes the complainant before they've consented to disclosure beyond HR.
The ACAS Code of Practice on Disciplinary and Grievance Procedures treats this distinction as foundational. A grievance finding based on contaminated witness accounts will often be set aside.
For Tom: his confidentiality request has been broadened to the HR Director before he has been asked.
For Stuart: he has a clear signal to hold everything, which is procedurally correct.
For Diane: nothing yet.
For the organisation: a mildly over-broad escalation is recoverable, and Jo Merrick's response corrects the breadth without rebuke. This handling is defensible but would have been stronger if you had spoken to Tom first.
The EHRC guidance treats the complainant's wishes as a material input to the handling route. Escalating immediately — before speaking to Tom — does not breach the duty, but it means the first substantive handling decision is made about him without him. Correctable in the next step; not ideal.
Jo has handed the next decision back to you: who gets told, when, with what framing. The options range from ‘nobody beyond HR’ to ‘General Counsel loop-in given Diane's seniority’ to ‘CEO.’ Each has costs.
You are weighing duty-to-act against the complainant's explicit confidentiality request. There is no perfect answer here — the skill is calibration against the specific facts: senior respondent, trainee complainant, no formal complaint yet, handling quality matters downstream.
You keep the circle tight: Jo on process-only, no names yet; yourself as the first HR contact Tom will meet. Everything is written down. Nothing else moves before you see Tom at 2pm.
For Tom: his explicit confidentiality ask is honoured as far as procedurally possible. He walks into the 2pm meeting knowing the circle is tight.
For Diane: nothing yet — and any subsequent procedural step will be clean.
For the organisation: this is precisely the 72-hour handling pattern the EHRC guidance treats as exemplary — proportionate, documented, complainant-centred.
The s40A preventative duty is not discharged by escalation; it is discharged by proportionate handling. Keeping the circle tight until the complainant has agreed a route is not passivity — it is the reasonable step at that specific moment in the timeline.
You brief Jo in full and loop in General Counsel on a privileged basis. No operational action follows; the circle stays at three people (you, Jo, Counsel). External investigator options are pre-positioned but not yet triggered.
For Tom: slightly more people know than he asked — but all of them are bound by privilege and procedure.
For Diane: nothing yet.
For the organisation: a defensible heavier footprint. The Counsel loop-in creates legal privilege over deliberations and pre-positions the investigator choice. Slightly slower, more evidenced.
Where the respondent is at Board-adjacent seniority, early privileged advice from General Counsel is consistent with the proportionality principle. The key: the loop-in must be on a privileged basis, with no operational action flowing from it until the complainant has chosen a route.
You decide to handle it yourself. Jo knows there is ‘a process matter’ but no details. Nothing is escalated. You will meet Tom at 2pm and take it from there.
For Tom: the handler is a single HRBP, below the seniority of the respondent. Any decision you make today is yours alone to defend.
For Diane: nothing yet — but any future process will have a visibility gap during the critical first 72 hours.
For the organisation: under-escalation against a senior respondent is a reasonable-steps exposure. If this becomes a tribunal, the file will show HRBP-level handling of a Director-level complaint. Defensible only if the eventual process is flawless.
Proportionality cuts both ways. Over-escalation broadens the circle unnecessarily; under-escalation leaves the organisation with handling visibility that does not match the seniority of the respondent. The EHRC guidance treats matching the handler's seniority to the case's sensitivity as a reasonable-steps factor.
You brief the CEO directly. He asks two questions: ‘Are we sure?’ and ‘What do you need from me?’ By 11:30am he has asked his EA to cancel his afternoon. By 2pm the circle includes the CEO, Jo, General Counsel, you — and informally the CEO's EA, who cancelled the meetings.
For Tom: the circle broadened without his knowledge or consent, four levels above him.
For Diane: she will learn, in a way she can document, that the CEO cleared his afternoon on the same morning.
For the organisation: a skipped layer and a broadened circle before the complainant has met HR. Procedurally recoverable but creates political pressure on a process that needs to be clean.
Escalation layers exist to match handling to severity, and to create clean procedural separation between fact-finding and decision-making. A CEO who has been briefed on an active complaint cannot later be the untainted decision-maker, if the matter reaches the board.
Four ways to frame this meeting. Each has costs.
For Tom: he is steering. He leaves the meeting with the same agency he arrived with.
For the organisation: a contemporaneous note, in his words, of the disclosure — the single most valuable artefact in any subsequent process.
The first-person narrative of the complainant, captured close to the event, is the anchor of every subsequent investigation. It is more evidentially valuable than summaries, paraphrases, or second-hand accounts. Capturing it carefully in the first HR meeting is a specific reasonable-steps behaviour.
You open with wellbeing. Tom is warm, grateful. Forty minutes pass. You have very few notes. You agree to meet again Thursday to ‘talk through the process part.’
For Tom: he felt heard personally. The procedural clarity he also needed is deferred.
For the organisation: the 72-hour contemporaneous record is thinner than it should be. Recoverable in Thursday's meeting but less evidentially weighty.
Wellbeing-first framing is warm and well-intentioned. It is also a defensible starting posture. Its cost is always the same: the procedural record you should have been building in that meeting is deferred, and the complainant leaves without the information he needs to choose a route.
You open directively. Tom listens, nods, asks a couple of clarifying questions about the formal grievance process. He leaves at 14:55. By Wednesday afternoon he has emailed to say he would like to ‘pause and think.’
For Tom: he was told what would happen rather than offered options. His agency has been reduced.
For the organisation: a complainant who feels steered into a process is a complainant who may later testify that HR removed his choice.
If the complainant later withdraws, the file will show HR removed his choice. If the complainant continues, the file will show the same thing. Either way the directive opening becomes an evidential problem for the organisation's reasonable-steps defence.
You suggest an informal apology pathway. Tom says nothing for fifteen seconds. Then: ‘Is that — is that what you think I should do?’ He leaves at 14:32. He does not reply to any message from you for the rest of the week. On Friday he emails HR a formal grievance copied to Jo Merrick and General Counsel.
For Tom: the first HR person he spoke to suggested his disclosure could be resolved with Diane apologising. He bypasses you.
For the organisation: the file now contains, in Tom's formal grievance, your exact framing as the first HR response. This is the clearest Lidl-pattern artefact available — an HR professional suggesting an informal apology pathway for a senior respondent's disclosed physical advance.
Suggesting informal resolution for a disclosed physical advance by a senior respondent is the specific handling pattern tribunals have repeatedly found to be a failure of the preventative duty. The conduct described is not what informal resolution is designed for, and the imbalance of power makes it additionally inappropriate.
Before the final decision, pause. The three choices you've made so far do not sit in isolation — each one seeds what shows up a week from now, a month from now, and if this ever reaches a tribunal. Open each cascade to see where your specific handling leads.
The compounding effect · open all three
Click each card to reveal the cascade. Continue appears once all three are open.
Decision 1 · Stuart's call
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Decision 2 · Escalation
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Decision 3 · Framing Tom
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No score delta on this screen. This is a teaching artefact before the final decision.
You are not the decision-maker on route — Tom is. But he is asking for your view. Your view will carry weight.
Tom agrees. By Friday morning an external investigator has been engaged. Diane is notified of the complaint under the grievance procedure, with precise terms of reference. The handling is procedurally clean from this point forward.
For Tom: his chosen route, activated with the right tools.
For Diane: a process she can trust as fair, however it finds.
For the organisation: an external investigator + documented terms of reference + complainant-led route = the strongest possible reasonable-steps defence file for the eventual outcome.
The ACAS Code does not mandate external investigators, but where the respondent's seniority creates an internal-impartiality risk, external appointment is treated as best practice. On a Regional Director as respondent, nothing internal will later look impartial.
Tom agrees to informal mediation, with the documented safety-net that any further incident, or Tom's election at any point, triggers formal process. The mediation is run by an external mediator, not HR.
For Tom: his chosen route, with a documented escape hatch.
For Diane: an informal route that is still recorded and procedurally bounded.
For the organisation: a defensible middle path — informal is proportionate for some handling but carries exposure if the underlying conduct was more serious than the informal route can contain.
Informal handling is legitimate under the EHRC guidance even for serious disclosures — PROVIDED the complainant has consented, the route is documented, and it has a mechanism for escalation. Informal without any of those three is the Lidl failure mode.
You offer Tom both routes, document that both were offered, and he elects not to proceed. The file closes with his decision and your contemporaneous record. You keep the note open, available if a pattern emerges.
For Tom: the decision is his. You have not coerced either direction.
For the organisation: the handling is procedurally clean; the record is complete; the risk is residual — if Diane's conduct continues or a further complainant emerges, this file is the backbone of the reasonable-steps defence.
The preventative duty does not force a complainant to pursue a complaint. The organisation's duty is to offer the route, document the offer and the decision, and act on any pattern. A closed file on an offered-and-declined route is a valid reasonable-steps artefact.
You send a quiet message to two regional colleagues ‘just to check their recollection’ of the Friday night offsite. One of them messages Diane asking why HR is asking. By Thursday morning Diane has lawyered up. The subsequent formal process is compromised — the informal investigation step contaminated witness accounts and tipped the respondent off without procedural basis.
For Tom: a procedural handling failure now sits between him and any formal finding.
For Diane: she was informed by rumour, not by procedure.
For the organisation: this is the handling pattern the ACAS Code and tribunal case law consistently treat as a procedural failure. Any subsequent formal finding against Diane will be challenged on this basis; any finding for her will be challenged by Tom on this basis.
Informal verification of a disclosure, outside the grievance procedure, is not a neutral act. It tips the respondent off via the workplace rumour network before procedure can inform them properly. The ACAS Code treats this as a procedural failure.
Four decisions across thirty-six hours. Each one documented. Each one reviewable. A reasonable-steps defence is not built on a single dramatic intervention — it is built on handling patterns like this one, repeated across a workforce, across every first report.
1. The 72 hours matter. The record you build in the first three days is the record the tribunal will see in two years.
2. Proportionality scales with seniority. Senior respondents need procedural fairness most; the organisation's reasonable-steps defence needs it equally.
3. The complainant leads on route. Not on what happens in a formal process — but on which process, and with what consent.
4. Informal is legitimate, when it has teeth. Documented, consented, with an escalation mechanism. Without those, it is the Lidl failure mode.
Module 3 picks up four weeks later, when Jo Merrick — now your narrator — has to build the organisation-wide prevention plan that would have stopped Diane's conduct before Tuesday morning's phone call.
Continue to Module 3 → Replay Module Course Home