Workplace Investigations in discrimination cases: Equality Act essentials

Workplace Investigations in discrimination cases: Equality Act essentials

 

Discrimination investigations must be prompt, impartial and evidence‑led. Identify the alleged treatment, potential comparator and protected characteristic, then gather documents and witness accounts proportionately. Make reasonable adjustments, avoid credibility shortcuts, and assess facts against Equality Act tests. Share relied‑upon material, hold a fair hearing, issue a reasoned outcome and offer an appeal.

 

Introduction

 

Discrimination allegations are legally complex and high risk. Investigations must be fair, sensitive and aligned with the Equality Act 2010 and the Acas Code. This guide turns the law into practical steps so employers can run Workplace Investigations that withstand scrutiny and protect people, culture and reputation.

 

Key takeaways

 

  • Map the allegation to Equality Act concepts early (direct, indirect, harassment, victimisation, discrimination arising from disability, failure to make reasonable adjustments).
  • Use proportionate enquiries and keep an open mind. The more serious the potential consequences, the more thorough your investigation should be.
  • Make reasonable adjustments for disabled participants so they can engage fairly (for example extra time, remote meetings, support person).
  • Assess facts against policy. Record both inculpatory and exculpatory material.
  • Finish with a balanced investigation report before conducting a fair hearing and offering an appeal route.
  • Protect parties from detriment and victimisation.

 

What counts as discrimination under the Equality Act?

 

The Equality Act 2010 protects people with ‘protected characteristics’: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. Workers with those protected characteristics are prevented from suffering discrimination that is direct, indirect, harassment, victimisation, discrimination arising from disability, and/or a failure to make reasonable adjustments.

 

Your investigation should identify which concept(s) may be relevant and what must be proved. Framing the investigation this way guides which evidence to prioritise, including, for example, any comparator, or any policy/criterion/practice (PCP)  relied upon.

 

Your legal duties and investigation standards

 

The Acas Code of Practice sets the baseline for fair procedures, including investigations. Tribunals can adjust compensation by up to 25% for unreasonable non‑compliance. For grievances and hearings, employees have a statutory right to be accompanied.

 

Although investigations are not tribunal claims, your approach may be scrutinised later by an employment tribunal. Reasonableness and proportionality are the touchstones. Record why you took or did not take each obvious step.

 

Equality Act essentials to factor into your investigation (plain English)

 

  • Direct discrimination — less favourable treatment because of a protected characteristic; usually requires a comparator (actual or hypothetical). 
  • Indirect discrimination — a neutral PCP that puts a group sharing a protected characteristic at a particular disadvantage and cannot be justified as a proportionate means of achieving a legitimate aim. 
  • Harassment — unwanted conduct related to a protected characteristic that has the purpose or effect of violating dignity or creating a hostile, degrading, humiliating or offensive environment. 
  • Victimisation — detriment because a person did, or may do, a protected act (for example someone is dismissed for raising discrimination allegations). 
  • Discrimination arising from disability — unfavourable treatment because of something arising in consequence of disability, unless justified. 
  • Reasonable adjustments — duty to take reasonable steps to avoid substantial disadvantage to a disabled person. 
  • Employment rights — prohibits discrimination in recruitment, terms and conditions, opportunities, dismissal and other detriments. 
  • Burden of proof — if facts suggest discrimination, the burden shifts to the employer to show a non‑discriminatory explanation.

 

How to investigate discrimination fairly: step by step

 

Scale your enquiries to the seriousness and sensitivity. Keep a clear audit trail and protect confidentiality, while providing the parties with the material you rely upon.

 

1) Intake, asses and safeguarding

 

  • Log the allegations with dates, examples and who raised them; acknowledge receipt and outline next steps and indicative timescales. 
  • Check immediate risks to wellbeing or operations; consider neutral interim measures (rota changes, separation, working from home). 
  • Consider safeguarding and make prompt reasonable adjustments so participants can engage.

 

2) Appoint an impartial investigator and set Terms of Reference (ToR)

 

  • Choose someone who has not been involved and who is suitably senior; consider an external investigator for sensitive cases or hose involving allegations against senior colleagues. 
  • Draft ToR: scope, timeframe, likely witnesses, systems to search (email, chat, calendars), confidentiality and deliverables; update if new issues arise. 
  • Explain roles and manage expectations about disclosure, anonymity and timelines.

 

3) Evidence strategy tailored to Equality Act issues

 

  • Direct discrimination identify comparators; examine how others were treated in similar circumstances; obtain objective records. 
  • Indirect discrimination: identify the PCP; gather data on who is disadvantaged; explore justification and less discriminatory alternatives. 
  • Harassment: collect contemporaneous records (messages, meeting notes); assess context and pattern; avoid over‑reliance on demeanour. 
  • Victimisation: map timing between protected act and detriment; check decision‑making records for motive. 
  • Disability : confirm knowledge/constructive knowledge; document adjustments considered, offered and implemented. 
  • Recruitment, progression or dismissal : preserve scoring sheets, interview notes, performance records and rationale documents.

 

4) Invitations and fair participation

 

  • Write to parties explaining the purpose of interviews, issues to be covered and their role. 
  • Provide the accused with the case to answer and key material relied upon, allowing time to prepare. 
  • Offer reasonable adjustments; consider support persons for vulnerable witnesses; stagger interviews if appropriate.

 

5) Conducting fair interviews

 

  • Open with ground rules: confidentiality, accurate notes and the chance to review and correct. 
  • Use open questions and probe specifics to get clarity; avoid leading or stereotype‑based phrasing. 
  • Test accounts against contemporaneous documents and independent data; seek corroboration where possible. 
  • Avoid credibility shortcuts based on demeanour or identity; focus on consistency, plausibility and evidence.

 

6) Assessing credibility and weighing evidence

 

  • Compare treatment across individuals and groups; check for consistency in decision‑making and documentation. 
  • Consider motive, opportunity, timing and comparators; record inculpatory and exculpatory material. 
  • Explain any preference between conflicting accounts; document evidence gaps and why they could not be filled.

 

7) Writing the investigation report

 

  • Structure: background and ToR; methodology; factual findings with references; analysis against policy and Equality Act tests. 
  • Keep tone neutral; avoid recommending sanction; the chair decides the outcome and sanction(s) after any formal hearing. 
  • Append evidence index, interview records and exhibits; include adjustments made and safeguarding steps taken.

 

8) Outcome, learning and appeal

 

  • Disclose the report and relied‑upon evidence with time to respond ahead of any formal hearing.
  • Hold any hearing fairly, allowing a companion to accompany ; decide on the balance of probabilities. 
  • Issue a reasoned outcome letter with actions, learning points and review dates; offer an appeal to someone more senior who has not yet been involved.

 

Common pitfalls in discrimination investigations

 

  • Predetermination or credibility judgments based on demeanour. 
  • Failure to identify the correct Equality Act concept or to analyse comparators/PCPs properly. 
  • Not making or recording reasonable adjustments for those with disabilities. 
  • Over‑collection or insecure storage of personal data; weak audit trails. 
  • Ignoring exculpatory evidence or failing to interview obvious witnesses. 
  • Allowing investigators to recommend sanctions instead of providing balanced findings.

 

Worked examples (anonymised)

 

Example 1: Promotion decision — A candidate alleges sex discrimination after being passed over for promotion. The investigator gathers scoring sheets, interview notes and panel emails, and interviews panel members individually. Inconsistencies in criteria application are found. The report recommends a reheard process with a new panel and training on structured scoring.

 

Example 2: Disability‑related absence — An employee receives a warning for absence. The investigator maps policies, OH advice and manager emails, and checks knowledge of disability and adjustments considered. The report concludes the warning was premature and recommends policy adjustments and training.

 

FAQs

 

Do we need a comparator for direct discrimination?

 

For some types of discrimination, yes,. A hypothetical comparator can sometimes suffice. The question is whether the person was treated less favourably because of the protected characteristic.

 

How do we identify a PCP for indirect discrimination?

 

Look for a rule, policy or practice, formal or informal, that applies to everyone but disadvantages a group sharing a protected characteristic. Test justification and less discriminatory alternatives.

 

What reasonable adjustments might be needed in the investigation?

 

Examples include extra time, remote or written interviews, accessible formats, frequent breaks or scheduling around treatment. Record requests, decisions and reasons.

 

Can we use anonymous witness evidence?

 

Sometimes, if there are genuine risks. Test reliability, seek corroboration and disclose as much as fairness allows while protecting individuals.

 

Is bullying always harassment under the Equality Act?

 

No. Bullying may not involve a protected characteristic. However, it can still breach policy or contract and may engage health and safety duties.

 

What about the new duty to prevent sexual harassment?

 

Employers must take reasonable steps to prevent sexual harassment, with a potential uplift to compensation for breach. Document risk assessments, training and controls, including at work‑related events.

 

When to get help and next steps

 

Sensitive or senior‑level cases, or those involving harassment, disability or complex comparators/PCPs, often benefit from an external investigator. We can scope, run or review investigations and provide templates to keep your process fair and practical. Being specialist employment lawyers, we know the Equality Act well; enabling us to correctly understand the allegations being made, and which have a legal basis to form a claim.

 

Disclaimer: This page provides general information only, based on UK employment law at the date of publication. It is not legal advice.

Our expert employment law solicitors all have many years’ experience advising individuals who are in your position. We will be able to guide you through the process and to help you secure the best possible outcome.


We offer a range of services, so please contact our friendly customer services team to discuss further via dh@kilgannonlaw.co.uk or 07969921491

This article is for information purposes only and is correct at the time of publication. It does not constitute legal advice 11.11.25