KJ v British Council

In assessing compensation for unlawful discrimination, an employment tribunal must construct the counterfactual in which none of the discriminatory wrongs occurred. It must therefore consider whether an employee’s apparent willingness to leave, reject revised terms, or pursue outside work was itself affected by the discrimination. A deduction may be made for an independent contingency, such as organisational restructuring, but the tribunal must identify and assess that contingency separately.

For limitation under section 123 of the Equality Act 2010, connected acts may amount to conduct extending over a period even where different people committed them. The question is whether the acts form a continuing discriminatory state of affairs rather than isolated and unconnected acts.

The claimant worked for the respondent in Morocco. The Employment Tribunal upheld her constructive unfair dismissal, sex discrimination, harassment related to sex and sexual harassment claims. It found that harassment by a colleague, the respondent’s inadequate response, and the grievance outcome were repudiatory and discriminatory. The claimant’s victimisation claim failed.

Following reconsideration, the Tribunal deducted 35% from compensation for unfair dismissal under Polkey and from discrimination compensation under Chagger. It also held that the sexual-harassment claim was in time because the conduct formed a continuing state of affairs. Alternatively, it would have extended time on a just and equitable basis.

The claimant appealed the compensation deductions. The respondent cross-appealed the Tribunal’s jurisdiction over the sexual-harassment claim.

1. The claimant’s appeal against the 35% discrimination-compensation deduction was allowed. Compensation for discrimination is assessed on a tortious basis. The Tribunal had to compare the claimant’s actual position with the position she would have occupied had none of the discriminatory wrongs occurred. Those wrongs included both the colleague’s harassment and discriminatory aspects of the grievance outcome.
2. The Tribunal erred by treating the claimant’s thoughts about returning to the United Kingdom, seeking external employment, declining internal roles and objecting to revised benefits as independent reasons for leaving without deciding whether they had been affected by the harassment. Her resignation after the grievance report did not establish that the earlier harassment had not changed her view of the respondent as a long-term employer.
3. The organisational restructuring was independent of the discriminatory wrongs. It was therefore a permissible matter in the counterfactual assessment. The Tribunal could have found some prospect that the claimant would not secure a post in the restructured organisation. However, it did not identify what part of the 35% deduction related to that independent contingency. The composite deduction could not stand.
4. The respondent’s cross-appeal was dismissed. The Tribunal was entitled to find a continuing discriminatory state of affairs. The colleague’s harassment, the claimant’s grievance about it, delays in its investigation and the discriminatory grievance report formed a connected thread culminating in resignation. The acts were not isolated or unconnected merely because different people were involved.
5. The Tribunal did not extend liability to unpleaded later acts of harassment. It used those acts only to illustrate the continuing state of affairs and the temporal connection with the grievance process. Its alternative just-and-equitable extension finding was inadequately reasoned, but that error was immaterial because the claim was in time.
6. Disposal of the successful appeal was adjourned pending the separate remedies appeal. The parties were to make further submissions after judgment in that appeal.

• Employment Appeal Tribunal: claimant’s appeal against the discrimination Chagger deduction allowed; respondent’s jurisdiction cross-appeal dismissed: [2026] EAT 46.
• Employment Tribunal, East London: amended judgment promulgated on 5 July 2024. It upheld the constructive unfair dismissal, direct sex discrimination and harassment claims, imposed 35% Polkey and Chagger deductions, and held the sexual-harassment claim in time.