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Tribunals must consider what would have happened if the discrimination had not occurred when assessing loss.
KJ v British Council concerned a woman who was employed by the British Council in Morocco. During her employment she was subjected to harassment and sexual harassment by a colleague. She raised a grievance which was poorly handled. She later resigned and brought claims against the British Council.
The findings of the Employment Tribunal were that KJ had been constructively dismissed because she had been subjected to sex discrimination, harassment and sexual harassment. The ET found multiple repudiatory breaches of the implied term of trust and confidence and discriminatory and harassing conduct for which the British Council was liable. The British Council was found to have failed to protect KJ. It also unacceptably delayed investigation into the allegations.
Assessing remedy, the tribunal reduced KJ’s compensation by 35% because there was evidence indicating that she may have left her employment even if the discrimination had not taken place. KJ appealed to the Employment Appeal Tribunal (EAT).
The EAT agreed with the Claimant. The tribunal was incorrect to reduce her discrimination compensation. The tribunal had not applied Chagger v Abbey National correctly.
Per Chagger a tribunal is required to consider what the Claimant’s position would have been but for the discriminatory wrongs. If the discrimination had not taken place, would she have thought about leaving? If KJ’s thoughts about leaving her employment were influenced by the discrimination, there should be no deduction to compensation.
The fact that KJ did not actually resign until the investigation report had been published did not mean that the harassment had not unsettled her and changed the way in which she viewed the British Council as a viable long-term employer.
The 35% reduction in her discrimination compensation could not stand.
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