Discrimination compensation: was the employee going to leave anyway?

A recent case, KJ v British Council, highlights a common HR challenge, deciding whether an employee’s actions after discrimination are separate from the discrimination itself.

In this case, an employee experienced sexual harassment and raised a grievance that was poorly handled. She later resigned and brought claims, which she won. The tribunal initially reduced her compensation by 35%, arguing she might have left anyway because she had been job hunting. But the Employment Appeal Tribunal (EAT) disagreed. It said the tribunal should have asked a more important question (based on Chagger v Abbey National) – what would have happened if the discrimination had never occurred at all?

What HR teams should take from this

This case is a reminder that causation is rarely straightforward in discrimination claims. An employee’s actions after the discriminatory act, such as looking for another job, may still form part of the chain of events caused by the discrimination itself. Employers should be cautious about assuming that job applications or career discussions mean the employee was planning to leave anyway, and clear records will often be key in showing what was happening before and after any complaint.

Here to Help

Our Employment team at Longmores helps employers handle workplace complaints, grievances and discrimination issues fairly and effectively.

If you need advice on managing a complaint, carrying out a fair process or understanding the potential risks arising from discrimination claims, please contact Miranda Mulligan, Senior Solicitor, in our Employment Law team.

Please note, the contents of this article are provided for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.