A recent Employment Appeal Tribunal (EAT) ruling tackles a common and challenging question in discrimination law – if an employee was already thinking about leaving their role, can an employer use that to reduce their compensation after they are harassed? This case provides a significant shield for those employees who find themselves "unsettled" by a toxic workplace environment and serves as a sharp reminder to employers that a flawed internal investigation can extend their legal liability by months or even years.
Background:
The appellant, KJ, was employed by the British Council from January 2011 and was assigned to Morocco in October 2018 as a Teaching Centre Cluster Lead. During her posting, she was subjected to a campaign of sustained harassment by a colleague between October 2020 and April 2021. KJ raised a formal grievance on 23 June 2021, which culminated in a report that was released on 15 November 2021, effectively blaming her for "mixed messages," romanticising the offender’s behaviour as that of a "spurned lover," and refusing to uphold her sexual harassment claims, despite evidence of physical assault. She resigned on 22 November 2021 and presented her claims to the Employment Tribunal (ET) for constructive unfair dismissal, direct sex discrimination, sexual harassment, and victimisation.
The ET upheld all the claims except that of victimisation, finding multiple repudiatory breaches of the implied term of trust and confidence and discriminatory conduct for which the British Council was vicariously liable. However, the ET applied a 35% Polkey reduction to unfair dismissal compensation and a 35% Chagger reduction to discrimination compensation (based on the possibility that KJ might have left her employment in any case due to organisational restructuring with a reduced benefits package), plus evidence that she was contemplating a move to other roles. KJ appealed the 35% deductions, and the British Council cross-appealed on jurisdiction, arguing that the sexual harassment claim was out of time.
Decision:
The EAT allowed KJ's appeal on the Chagger deduction, holding that the ET had failed to consider what would have happened had none of the discriminatory wrongdoings occurred, particularly whether KJ's thoughts about leaving were themselves influenced by the harassment she had suffered. The 35% deduction from discrimination compensation could not stand. The EAT dismissed the British Council's cross-appeal, finding that the sexual harassment formed part of a continuing discriminatory state of affairs leading to the grievance report of 15 November 2021, meaning that the claim was indeed brought in time.
Implications:
This judgement is important for anyone navigating a discrimination claim. For employees, it confirms that your "career intentions" are not ascertained in a vacuum. If a toxic environment pushes you to look for an "escape route" via a new job or a move abroad, an employer generally cannot use those actions to argue that you were going to leave anyway. Thus, your compensation should reflect the successful career you would have had, given sufficient dignity and protection from harassment.
For employers and HR professionals, this case highlights that the "limitation period" for a claim does not necessarily reset after every individual act of harassment. If a company handles a grievance poorly or allows a "climate" of harassment to persist, it creates a single, continuous legal event that allows a claimant to sue for conduct that happened many months ago. Transparency and a victim-centred approach during internal investigations are not merely ethical requirements—they are essential legal safeguards to prevent a "continuing act" from ballooning into a high-value compensation claim.
