Every decision in the preceding eighteen months is about to be examined. This is the moment the defence file stops being a filing cabinet and starts being evidence.
You are Jo Merrick and Lena Forsyth, sharing the defence of Kelmar Group at employment tribunal. Eighteen months ago Tom Elliott disclosed harassment by his regional director. The investigation found against Diane Pritchard; Kelmar dismissed her. Tom resigned citing the cumulative experience and filed constructive dismissal, sexual harassment, and s40A breach claims. The live question at tribunal next week is: did Kelmar take reasonable steps under s40A? If the answer is no, the compensation uplift is up to 25%.
The claims: s26 harassment (expected upheld on the facts), constructive dismissal under ERA 1996 s95 (expected upheld), and s40A breach (the live question).
The uplift mechanism: under Equality Act s124(2)(b) a tribunal that finds s40A breached may apply a compensation uplift of up to 25% of the s26 award.
The defence file: an aggregated record built across eighteen months — policy, training, risk assessment (M3), handling records (M2 and M4), and the Claire Davies investigation report (M5).
What the tribunal will apply: the reasonableness test under s40A and the EHRC 8-step framework as non-binding but persuasive guidance.
The forward horizon: ERA 2025 in October 2026 raises the duty to ‘all reasonable steps’ — today's judgement calls become tomorrow's statutory minimum.
Kelmar Group · 28–35 minutes
§1Six days before the hearing
Monday morning
A corporate conference room. A long table, stacked bundles of documents, three chairs, a screen showing a video-call waiting for participants. Editorial framing. No dialogue.
§2Opening the bundles
Monday, six working days before the hearing
Lena Forsyth“Jo — before Priti joins, let's work the file. Twenty exhibits in the bundle. I want your view on each before I give you mine. Strength, weakness, or neutral — in the s40A sense.”
Jo Merrick“Let's.”
Priti Rao“[joining video call] Jo, Lena — I'll listen for the first pass. Tell me what you think is strong, what you think is weak. I'll push back on assumptions.”
The twenty exhibits of the defence file are arrayed on the screen. Each needs a tag: strength, weakness, or neutral. Your tagging will frame the defence strategy meeting that follows.
§Activity — The defence file audit
Twenty exhibits. Tag each: strength, weakness, or neutral.
A reasonable-steps file is an asset when its strengths are known and its weaknesses are conceded before they are exposed. Overreach on what the file proves is the specific pattern that turns a partial defence into a full uplift.
Tagging an exhibit as a ‘strength’ when it is a weakness carries a false-positive penalty. The tribunal will find the weakness; overreach in the defence is worse than honest concession.
0 / 20 exhibits tagged
§The file, seen clearly
Lena writes the tallies on the whiteboard
Strengths: policy freshness, training delivery, the M3 risk assessment, Rachel's handling note, the external investigator retention, the investigation report, the Diane dismissal, the M4 in-shift record, the board minutes, reporting channels, the post-incident policy update, the third-party contract clause. Weaknesses: the 2021 policy gap, the out-of-date training content, the CEO email, the HR Director's ‘not ready’ note. Neutrals: EAP uptake, resignation letter, budget allocation, disciplinary rationale.
For the defence strategy: the file contains clear strengths and clear weaknesses. Whether the defence stands on strengths or concedes weaknesses is the next decision.
For Tom: the tribunal will see the strengths and the weaknesses either way. What matters is whether Kelmar presents them honestly.
For the organisation: over-tagging strengths is the specific pattern that destroys credibility. Under-tagging strengths is recoverable; over-tagging is not.
Honest file, defensible position
A defence file read by a tribunal is read in the round. Tribunals are experienced at spotting organisations that overstate their evidence and organisations that concede fairly — and the difference is reflected in the uplift. The Lidl 2025 tribunal specifically credited the organisation for certain concessions and penalised it for others.
§3Decision — Defence positioning
Monday, week before the hearing
How does Kelmar plead s40A?
The pleading strategy must be decided and filed with external counsel by Wednesday. The right one depends on the strength of the file you have just audited.
Dynamic scoring: the ‘full defence’ option rewards a strong file (high aggregate score across M1-M5) and punishes a weak one. The other options are static: partial concession is a strong play in any context; full concession on s40A is conservative; aggressive defence on a dismissed-respondent claim is the named anti-pattern.
§What happened next
Full defence filed
External counsel files a full s40A defence. The pleadings set out reasonable-steps evidence across all eight EHRC steps, concede s26 on the facts, and concede constructive dismissal. The position reads as confident without over-reaching — if the file supports it.
Tribunal implication: a defended s40A claim tests the tribunal's application of the reasonableness test directly. If the evidence holds, the uplift is nil or minimal.
Board implication: the organisation's position is on record as asserting it met the duty.
Uplift implication: running estimate — 0–10% range on a strong file; 20–25% on a weak one. The stronger the file, the lower the range.
When full defence is the right call
A full defence on s40A is appropriate where the file contains direct evidence against each of the EHRC 8 steps and the handling of the triggering incident was procedurally sound. Overreach — full defence on a weak file — is the specific pattern that turns a partial uplift into a full one. Honest file-audit discipline at this stage is the prerequisite.
§What happened next
Partial concession — precise, evidence-calibrated
External counsel files a partial concession pleading. Kelmar acknowledges that the 2021 policy and the out-of-date training content fell short of the post-October 2024 expectation, and defends the rest. The pleading reads as precise, honest, and evidence-calibrated — which is precisely what tribunals reward.
Tribunal implication: concessions on specific exhibits free the tribunal to focus its scrutiny on the contested ground, where Kelmar's strongest evidence sits.
Board implication: the board is on record acknowledging specific shortfalls — a mature governance position.
Uplift implication: running estimate — 5–15% range. Concession narrows exposure without accepting full breach.
Concession as strategy
Partial concession is frequently the strongest pleading in reasonable-steps cases. It signals to the tribunal that the organisation knows where its evidence is strong and where it is not. Tribunals have repeatedly noted that honest concession on specific shortfalls is itself a factor in lower uplift awards.
§What happened next
Full concession — quantum-only argument
External counsel files a full concession pleading on s40A, focusing argument on remediation since October 2024 to mitigate the uplift percentage. The strategy accepts the breach finding and shifts the hearing to the quantum argument.
Tribunal implication: no s40A liability argument to run; the hearing narrows to how much uplift. Simpler hearing; less opportunity to demonstrate what Kelmar has built.
Board implication: the organisation is on record accepting breach — correct on a weak file but leaves the prevention programme undefended publicly.
Uplift implication: running estimate — 10–20% range. The mitigation argument on remediation can reduce but not eliminate uplift.
Full concession on a weak file
Full concession is the defensible call when the file is weak and the effort cost of running a full defence would not match the probability of winning. It is a judgement call — on a strong file it is under-confident; on a weak file it is prudence.
§What happened next
Aggressive defence — bad-faith reading
External counsel files a full denial pleading including procedural challenges to Tom's constructive dismissal narrative. Tom's representatives file a supplementary application citing bad-faith defence. The tribunal convenes a preliminary hearing and expresses concern about the procedural challenges.
Tribunal implication: the tribunal's tone towards Kelmar shifts before the substantive hearing begins. Counsel now opens the main hearing with the panel already doubting the defence's good faith.
Board implication: the organisation is publicly positioned as contesting a complainant's account post-dismissal of the respondent.
Uplift implication: running estimate — 20–25% range. Aggressive defence on a harassment claim with a dismissed respondent is the specific pattern that pushes uplift to the statutory maximum.
Aggressive defence post-dismissal
Once the respondent has already been dismissed for the conduct, aggressive defence of the claim against the complainant reads as bad faith — and tribunals have specifically cited this pattern as an aggravating factor in uplift calculations. Lidl 2025 notes the pattern explicitly.
§4Pre-hearing prep with Lena
Thursday, three days before the hearing
Lena Forsyth“Jo — five questions. I've rehearsed them from the judge's approach papers. Answer each in your own words. I'll score it on two axes: procedural credibility on one, board-facing integrity on the other.”
Jo Merrick“Go.”
NarratorFive questions from the tribunal panel's angle. Your answers will shape the hearing's reputation meter — procedural credibility on one axis, board-facing integrity on the other. Both matter. Both must move together.
Each question has four answer options. Each option moves the reputation meter along both axes. The goal is not just credibility — it is credibility without hollowness.
§Activity — The reputation meter
Five questions. Two axes. Both must move together.
The dual-axis meter tracks procedural credibility (how the answer lands with the tribunal) and board-facing integrity (how the answer lands with Kelmar's own governance). The lower of the two axes drives the score — credibility without integrity scores the same as integrity without credibility.
Procedural credibility
0
Board-facing integrity
0
§5Decision — Mid-hearing, a witness surprise
Day 2 of the hearing, mid-afternoon
Tom's side calls a previously undisclosed witness
A former Kelmar manager who left eight months ago testifies that she, too, had raised concerns about Diane's conduct informally in 2023, and that nothing was actioned. This contradicts your earlier evidence. Counsel has asked for a brief recess.
The witness is on the stand. Next-step decision.
§What happened next
Adjournment granted — the gap verified
The tribunal grants the adjournment. In thirty minutes your team checks the 2023 HR log, the relevant manager's exit interview, and the complaint intake system. There is no record. The witness's account appears truthful; the record gap is real. You resume with an adjusted position: concede the 2023 concern was not captured, explain what has changed in the reporting system since, and continue.
Tribunal implication: the adjournment and honest post-break adjustment reads as the organisation taking new evidence seriously. The panel credits the handling.
Board implication: a new data-point for the reporting-systems improvement programme.
Uplift implication: the new evidence slightly raises the uplift range, but the handling prevents the rise being material. Range moves from 5–15% to 8–18%.
Adjournment as a procedural tool
Asking for a short adjournment to take instructions is a standard tool, not a weakness. It preserves the quality of evidence given after the break. Tribunals routinely grant short adjournments and credit respondents for using them rather than responding on the fly.
§What happened next
Concede in real time — clean, slightly tighter
You accept the new evidence on the record without seeking an adjournment. Counsel adjusts the remaining line of defence in real time. The handling is clean — just tighter than it needed to be, because the underlying question (was there a 2023 record?) was not verified before concession.
Tribunal implication: honest response. Marginally less effective than the adjournment path because the facts underlying the concession were not verified before acceptance.
Board implication: a concession on the record that may or may not match what a later verification would show.
Uplift implication: 8–18% range — the uplift turns on the underlying gap, not the seconds of acceptance.
§What happened next
Discredit attempt — the room shifts
Counsel cross-examines the witness sharply on her reasons for leaving, the timing of her coming forward, and specific details of the 2023 conversation she cites. The witness holds her ground; the tribunal's body language shifts. In closing, the claimant side cites the cross-examination as evidence of a defensive culture.
Tribunal implication: the panel now has a second data-point on Kelmar's handling pattern — live, in the room.
Board implication: the organisation has now publicly attacked a former employee for bringing forward a concern. Reputationally material.
Uplift implication: range moves from 5–15% to 18–25%. The specific Lidl 2025 pattern the tribunal is watching for.
§What happened next
Procedural objection — gains nothing
Counsel objects to the late disclosure. The tribunal considers the objection and allows the evidence subject to a short weight-adjustment warning to Tom's side. The exchange takes fifteen minutes and gains Kelmar nothing procedurally while signalling to the panel that Kelmar is willing to use procedural tools to manage adverse evidence.
Tribunal implication: the objection is largely unsuccessful; the evidence is admitted.
Uplift implication: range unchanged; the procedural play neither helps nor hurts materially, but reads as defensive rather than substantive.
§6Decision — The closing position
End of day 3, closing submissions tomorrow
What does Kelmar ask the tribunal to find?
§What happened next
The principled close
Counsel's closing is measured, evidence-grounded, concedes the two expected findings, and puts the s40A question to the tribunal with the defence file on full view. The submission reads as principled rather than performative.
Tribunal implication: the panel is left to make its own assessment on s40A with complete evidence. The closing framing earns respect.
Uplift implication: the final uplift turns on the aggregate evidence; the closing neither inflates nor discounts it.
The principled close
Tribunals regularly note the value of a closing that concedes what must be conceded and defends what can be defended with its full evidence in view. It is the posture most consistent with EHRC Step 8.
§What happened next
Quantum-only argument with remediation evidence
Counsel accepts the s40A finding and argues for a minimal uplift on the basis of specific remediation since the incident. The tribunal takes the mitigation evidence carefully into account.
Tribunal implication: a clean quantum argument. The tribunal can focus its uplift decision on the strength of the remediation evidence.
Uplift implication: range narrows to 5–15% depending on remediation specificity.
§What happened next
Contested close on indefensible ground
Counsel contests all three claims in closing. The harassment claim is all-but-unarguable on the facts (Diane was dismissed for the conduct); the constructive dismissal follows; the s40A defence is weakened by the overreach on the first two.
Tribunal implication: a contested close on indefensible ground undermines credibility on defensible ground. The panel reads the closing as a coherent pattern.
Uplift implication: range moves from baseline to 20–25%. Contested close on implausible ground is the specific pattern that maximises uplift.
Why contesting what you cannot win damages what you can
A tribunal listens to a closing in the round. Counsel who contests the expected findings loses credibility on the contested finding as well. Overreach on points 1 and 2 contaminates the panel's read of point 3.
§What happened next
Open offer in closing
Counsel makes an open offer at a specific uplift percentage. The tribunal considers it in due course; it is neither accepted nor rejected. The offer itself is on the record.
Tribunal implication: the offer neither reduces the hearing nor helps the tribunal calibrate.
Uplift implication: range unchanged. The offer may influence settlement if reached, but does not alter the tribunal's substantive analysis.
§7The judgment
Four weeks after the hearing
NarratorThe judgment runs forty-three pages. The tribunal upholds the s26 harassment claim. It upholds the constructive dismissal claim. On s40A, the tribunal's finding and the uplift percentage are calibrated against the specific exhibits in the defence file and the handling at the hearing itself.
Lena Forsyth“The number will be what it is. The reasoning is what matters for the programme forward.”
The verdict is not a simple pass/fail — it is a calibrated assessment of which reasonable steps were present, which were absent, and which were handled well under pressure. The final uplift will be revealed at debrief.
§Activity — After Action Review
Three prompts. Pick two from each.
The reflective capstone. Not graded on correctness — graded on internal coherence. Your selections for ‘what actually happened’ should map to the items you pick for ‘what would you change.’
No score impact. Coherence feedback shown post-submit.
§8Board debrief
Ten days after the judgment
Marcus Bellweather“Priti, Jo, Lena — so the position is this. The tribunal found as it found. The uplift is the uplift. What do we change from here.”
Priti Rao“The thing I want on the record is that the file we put in front of the tribunal was honest. Where we had strong evidence, we stood on it. Where we didn't, we said so. That was the right call — both for the case and for the organisation.”
Jo Merrick“The AAR points at three priorities: programme refresh cadence, third-party policy as a standalone, and the first-72-hour protocol standardisation. I'll have a revised plan for the next board meeting.”
Marcus Bellweather“Good. Lena — ERA 2025 is October next year. How much of this does it move?”
Lena Forsyth“Most of it. What we defended on discretion becomes minimum statutory under ERA 2025. The file we file next time will need to be stronger, on paper, for the same effort in substance.”
The board debrief is measured. No scapegoating, no performative disappointment. The work forward is the work of the programme.
§9The eighteen months, read back
A defence file is built, not found.
Eighteen months. Six modules. Thirty decisions. Fifteen activities. Hundreds of small choices that aggregated into a defence file the tribunal read in the round. The uplift is the output of a calibrated assessment — not a single moment of judgement.
The tribunal's verdict
0
—
What to carry forward
1. A defence file is built, not found. Every module's decisions became exhibits. The file is the aggregate of choices made across M1–M5, not a document that exists independent of the work.
2. Honesty at the audit is the strategic move. Organisations that overclaim at tribunal pay for the overclaim. Honest concession on specific exhibits is credited; honest defence on strong exhibits is credited.
3. The reputation meter is dual-axis for a reason. Credibility without integrity reads as hollow. Integrity without credibility reads as naive. The best answers hold both.
4. October 2026 raises the floor. What was reasonable-steps judgement becomes minimum statutory standard. The programme forward is what the file will need to look like under the new framework.
How the file shaped the outcome
Jo Merrick (HR Director)
Lena Forsyth (Counsel)
Priti Rao (Audit Committee)
Marcus Bellweather (CEO)
Kelmar Group (employer)
The course closes here. The defence file you built — the exhibit list, the decision record, the AAR — is the final export.
