Discrimination compensation: ‘They were going to leave anyway’ isn’t OK

Discrimination compensation awards can’t automatically be reduced because an employee was already job hunting — the Employment Appeal Tribunal’s (EAT) decision in KJ V British Council confirms the reason for the job search is important.

This is a common HR challenge: deciding whether an employee’s actions after discrimination are separate from the discrimination itself.

KJ v British Council

In this case, an employee experienced sexual harassment at work and raised a grievance against her employer that was poorly handled. She later resigned and filed numerous claims including sexual harassment, which she won.

The employment tribunal initially reduced her compensation by 35%, arguing she might have left anyway because she’d been job hunting. But the 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?

If the employee only started looking for other jobs because of the discrimination, then those actions can’t be used to reduce compensation.

3 practical tips for handling discrimination claims

1. Consider the cause for the job hunting
   actions taken after discrimination may still be connected to it.
2. Don’t jump to conclusions
   Job applications or career discussions don’t always mean an employee planned to leave.
3. Keep clear records
   Good documentation helps show what was happening before and after any complaint.

Further reading

• Hiring a ‘good fit’ for your team could be discriminatory  – Hunter Law 
• Misconduct and disability: Dismissal can be fair – Hunter Law 
• Equality Act 2010: guidance – GOV.UK
• Discrimination and Bullying – ACAS
• How the valuation of a discrimination claim is decided – EHRC