K J v British Council [2026] EAT 46

By Jo Seery, Employment Rights Support Lawyer

Background

The claimant, KJ, who was employed by the British Council in Morocco, was subjected to harassment and sexual harassment by a colleague between October 2020 and April 2021. She initially raised her concerns informally in December 2020 and submitted a formal grievance in June 2021.

She resigned on 22 November 2021 following a report of 15 November 2021 by the Council’s Speak Up Committee, which had investigated her grievance. 

A subsequent investigation by the British Council’s Speak Up Committee partially upheld the grievance, but the Employment Tribunal later found aspects of the investigation and its conclusions to be perverse and unreasonable.

The claimant brought a claim for constructive unfair dismissal on the ground that the Council had:

• breached the duty of trust and confidence as a result of the harassment and sexual harassment she was subject to.
• failed to protect her from further acts after she had reported it informally.
• offered inadequate support during the investigation.
• reached a conclusion in the outcome report that was seriously flawed.

KJ also claimed direct sex discrimination, harassment related to sex, sexual harassment and victimisation.

Outcome of the Employment Tribunal

The Employment Tribunal upheld KJ’s claims for constructive unfair dismissal and discrimination, but applied a 35% Polkey reduction to unfair dismissal compensation and a 35% Chagger v Abbey National reduction to discrimination compensation on the basis that she might have left employment due to a restructure and evidence that she was contemplating a move.

The claimant appealed the reductions to her compensation and the Council cross‑appealed, arguing that the harassment claims were out of time.

Key Issues

The Employment Appeal Tribunal was required to consider whether the Tribunal had correctly approached compensation for discrimination under the principles in Chagger, which required the Tribunal to consider what would have happened had none of the discriminatory conduct occurred.

The EAT was also required to consider whether the Tribunal had been entitled to treat the harassment as part of a continuing act for limitation purposes under section 123 of the Equality Act 2010.

Outcome

The Employment Appeal Tribunal (Mr Justice Sheldon presiding) allowed the claimant’s appeal and dismissed the respondent’s cross‑appeal.

In relation to compensation, the EAT held that the Tribunal had erred in its application of Chagger. It had not considered whether the claimant’s thoughts or actions about her future were affected by the harassment she had suffered. As a result, the 35% Chagger reduction could not stand and was set aside.

On limitation, the EAT upheld the Tribunal’s finding that the harassment formed part of a continuing discriminatory state of affairs which started with the harassment she was subject to by her colleague and ended with the report into her grievance with she received on 15 November 2021. This meant that the claims were brought in time..

Why This Matters

This decision confirms that when determining what compensation is payable in a claim for discrimination, employment tribunals must ensure they consider what would have happened had the claimant not been subject to the discrimination/harassment.  This is in accordance with the general rule for compensation in tort claims (which applies to discrimination claims), namely that the claimant must be put into the position they would have been had they not been subject to the wrong.

As to the question of time limits, the Employment Tribunal applied the test in Commissioner of Police of the Metropolis v Hendricks 2003, finding that there was a continuing state of affairs which started with the harassment and concluded with the SUC report dated 15 November 2021. However, the distinction between acts which are unconnected and isolated - for which time runs from the date each act is committed - and acts which are part of a continuing state of affairs and for which time runs from the last act is not always an easy one to make.  Advice should always be sought in these types of cases.