In the case of K J v British Council, the claimant was employed overseas and subjected to harassment and sexual harassment by a colleague. She raised a grievance, but the employer’s handling of that process was found to be seriously flawed, including conclusions that inappropriately attributed blame to her and downplayed the seriousness of the conduct.
The Employment Tribunal upheld claims for constructive unfair dismissal, direct sex discrimination and harassment. It found multiple repudiatory breaches of trust and confidence, including failures to protect the claimant and serious deficiencies in the grievance process.
However, the Tribunal applied a 35% reduction to both unfair dismissal and discrimination compensation, on the basis that there was a chance the claimant would have left in any event due to restructuring, reduced benefits and her apparent interest in other roles.
The claimant appealed that reduction. The employer cross-appealed on limitation.
The EAT allowed the claimant’s appeal in relation to compensation for discrimination.
It confirmed that, when assessing financial loss in discrimination claims, tribunals must consider what would have happened if the unlawful treatment had not occurred. This involves constructing a “what if” scenario in which the discrimination is removed entirely.
The Tribunal had failed to do this properly. It relied on evidence that the claimant had been considering other opportunities and a possible return...
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