The Error

KJ worked for the British Council in Morocco. A colleague, R, harassed her from October 2020 to April 2021. When KJ lodged a formal grievance, the British Council's Speak Up Committee produced a report that — among other things — blamed KJ for her "mixed messages" and discounted two later-admitted instances of sexual assault. KJ resigned a week after the report landed.

The tribunal upheld claims for unfair constructive dismissal, direct sex discrimination, harassment related to sex, and sexual harassment. So far, so orthodox. The difficulty came at remedy.

Applying the principle from Chagger v Abbey National plc [2009] ICR 624, CA, the tribunal deducted 35% from KJ's discrimination compensation. Its reasoning: there was a restructuring exercise, a reduced benefits package, and evidence that KJ had been contemplating a move to the UK or external roles. These factors, the tribunal concluded, meant there was a 35% chance she would have left anyway.

The EAT allowed the appeal. The tribunal had asked the wrong question.

What a Chagger Deduction Requires

The Chagger exercise requires the tribunal to construct a counterfactual: what would have happened to the claimant had none of the discriminatory wrongs occurred? That means stripping out every piece of discriminatory conduct before assessing whether the claimant would still have left.

The tribunal's error was that it treated KJ's thoughts about leaving — her interest in external roles, her reaction to a reduced package, her contemplation of a return to the UK — as independent factors pointing toward departure. But it never asked whether those thoughts were themselves products of the harassment. Had R never harassed her, and had the grievance process not compounded the wrong, would KJ still have been looking at the door? The tribunal did not address that question.

As the EAT put it: the fact that KJ did not actually resign until the SUC report was published did not mean that the harassment had not unsettled her and changed the way in which she viewed the British Council as a long-term employer.

What the Tribunal Did (Wrong) Was claimant thinking about leaving? Restructuring ✓ External roles ✓ Reduced package ✓ UK return ✓ Treated as independent factors 35% deduction applied Never asked: were these thoughts caused by the discrimination? Correct Chagger Method (What the EAT required) Step 1: Remove ALL discriminatory conduct from the counterfactual Step 2: In that world, would claimant still have been thinking of leaving? Step 3: Only genuinely independent factors survive as deduction candidates Here: restructuring was independent ✓ External roles / UK return — contaminated ✗ Assess % for independent factors only

The One Factor That Survived

The EAT accepted that the restructuring exercise was a legitimate basis for a Chagger deduction. Restructuring was entirely independent of the discrimination — it would have happened regardless. And there was evidence that KJ might not have secured a post in the new structure. But the tribunal's percentage was hopelessly entangled with the contaminated factors, so the EAT could not salvage any part of the 35% figure. The deduction fell entirely.

The Continuing Act Point

The British Council cross-appealed on limitation. The last act of sexual harassment was in April 2021; KJ did not present her claim until February 2022 — ten months later. But the EAT upheld the tribunal's finding that the sexual harassment formed part of a continuing discriminatory state of affairs culminating in the grievance report of November 2021. The harassment, the failure to protect KJ, the delay in investigating, and the perverse findings of the SUC were all linked. Time ran from the last act in the series.

The tribunal's alternative finding — that it would have been just and equitable to extend time — was flawed. But that did not matter. The primary finding on continuing conduct was sufficient.

Practical Takeaways

For respondents: If you are arguing for a Chagger deduction, you must isolate factors that are genuinely independent of the discriminatory conduct. A restructuring programme that predates or is unconnected to the discrimination will survive scrutiny. The claimant's general career restlessness will not — unless you can show it existed before and independently of the wrongs complained of.

For claimants: Challenge every factor in the respondent's Chagger case. Ask: would this factor have operated on the claimant's mind in exactly the same way if the discrimination had never happened? If the answer is "probably not" or even "we don't know", it is contaminated and should be excluded from the deduction.

On limitation: Where there are multiple acts of discrimination across different categories (harassment, grievance failures, institutional responses), argue the continuing state of affairs. The tribunal looked at the overall picture — not each act in isolation — and that approach was endorsed on appeal.

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