Sexual Harassment in the Workplace

KJ v British Council [2026] EAT 46 

As we are seeing a significant increase in the number of claims being brought for sexual harassment and constructive dismissal, the recent case of KJ v The British Council [2026] serves as a timely reminder of the seriousness with which Employment Tribunals treat claims of harassment and sexual harassment. It also provides useful practical pointers for employers in dealing with these complaints. 

On a more technical footing, the EAT clarified the way in which compensation reductions can be made by a tribunal to take account of the fact that a claimant may have left employment for a non-discriminatory reason.  

Background  

The claimant was employed by The British Council (an executive non-departmental public body of the Foreign, Commonwealth and Development Office) and worked in Morocco as Teaching Centre Cluster Lead.   

During lockdown in 2020, the claimant was obligated to remain in Morocco. During this time, her father passed away. The claimant’s colleague, who was Country Director for Morocco, the highest-ranking position in the country, provided the claimant with support and arranged for her to return to the UK temporarily. When the claimant returned to Morocco, the relationship with her colleague changed.  

The claimant alleged that over a period of six months from October 2020 to April 2021, she was subjected to sexual harassment by her colleague, including flirtatious and inappropriate comments, unsolicited and excessive messages and excessive gifting.  The claimant sought to make it clear to her colleague that his conduct was unwelcome and that she wanted it to stop, but to no avail.

In December 2020, the claimant raised informal concerns with relevant managers and was advised to make it clearer to her colleague that she did not want anything to happen. The claimant subsequently wrote an email to her colleague a week later doing just that. Her colleague responded with an apology and an acknowledgment that his behaviour was wrong. However, he continued to message the claimant and made several attempts to meet her in person.  

In June 2021, the claimant submitted a formal grievance in which she made various allegations of sexual harassment.  

The respondent’s Speak Up Committee (SUC) commissioned an investigation into the claimant’s allegations. The claimant submitted evidence of her colleague’s behaviours. The claimant was candid that early on, she had flirted with her colleague and wondered for a time if she was interested in him, but that this had come to a stop. The investigator met the alleged perpetrator and other relevant witnesses.  

Following the investigation, the respondent’s SUC reviewed the investigator’s report and reached its own factual findings. It produced a fresh ‘outcome’ report which concluded that the grievance was partially upheld, finding that the colleague was guilty of harassment but not sexual harassment. It made reference to the fact that both parties had been flirtatious/exploring a romantic relationship and that the colleague had been exploring the boundaries of the relationship. It found that there was evidence of physical touching and stalking, but no evidence of unwanted sexual advances. 

Having received the initial grievance decision on 15 November 2021, the claimant resigned on 22 November and submitted an appeal against the grievance outcome on 23 November 2021. The outcome of the appeal, which was sent to the claimant on 04 March 2022 (just over a week after her resignation took effect on 22 February) found that the claimant had been sexually harassed. 

The claimant consequently brought claims of constructive unfair dismissal, direct sex discrimination, harassment related to sex, sexual harassment and victimisation. The claim was based on not only the allegations made against her colleague, but the way in which the respondent had dealt with her complaints. She alleged she resigned in response to the grievance outcome, citing it as the ‘final straw’. 

The Employment Tribunal 

The Employment Tribunal upheld all of the claims apart from victimisation.  

The Tribunal found that the investigation into the claimant’s grievance had been “deeply flawed”. It noted that conduct does not have to be objected to in order to be unwanted and that the investigation should have looked at the holistic pattern of the alleged behaviour, rather than seeking to divide the allegations into separate time periods and treat each period as if it was unrelated. It was critical of the suggestion by the respondent that the claimant had effectively given her colleague the green light because she had sent flirtatious messages. 

The Tribunal made a number of criticisms of the respondent’s process, including: 

• The managers to whom the claimant initially raised her concerns ‘informally’ in December 2020 should have overridden the claimant’s wish to keep matters informal given the seriousness of the concerns.
• It was not an easy matter to investigate and the investigator had no experience of sexual harassment allegations and limited experience of conducting grievance investigations. The respondent would have been “better served by an independent investigator who could devote the whole of their time to the investigation and who had experience of investigating complex allegations of harassment”.
• A more inquisitorial approach was required of the colleague’s messages to the claimant, rather than accepting them at face value.
• A summary of the matter was provided by HR to the investigator, which was deliberately or ineptly partisan, and gave greater weight to the colleague’s evidence over that of the claimant.
• The investigator’s approach to obtaining evidence from witnesses was confused, biased and inconsistent.
• The investigation report was misleading and the conclusion that there had been no unwanted sexual advances was “inexplicable and entirely unsustainable”; and there had been an attempt to normalise the colleague’s stalking behaviours.
• As noted above, in December 2020 the claimant had sent an email to her colleague making it clear his behaviour was unwanted. The Tribunal found that the respondent’s decision that nothing prior to this could be harassment was not one a reasonable employer would make. The Tribunal noted that the most troubling aspect of this was that it implied that a woman who engages in flirting at some point in time gives consent to being harassed, stalked and assaulted until such time as she withdraws her consent in writing.
• The process used by the respondent was confused and it could not adequately explain to the Tribunal why it did what it did, or which person or body (the SUC) was responsible for making decisions, which called into question the validity of its decision.
• The respondent had not been proactive in safeguarding the claimant’s welfare or of preventing the colleague’s actions.
• There had been an excessive and unreasonable delay in dealing with the claimant’s grievance.

The Tribunal considered that the grievance appeal officer had taken the correct approach, namely asking himself what harassment and stalking were, and then investigating whether the alleged behaviour met the definition. It also agreed with the appeal officer’s finding that the claimant was “mentally vulnerable”, that she felt “guilt and shame” for her conduct in replying in a friendly way to further engagement from the colleague after having informed him of her wishes for him to stop because she felt “trapped to show warmth and gratitude”.  

When assessing compensation, the Employment Tribunal followed the principles established in Chagger v Abbey National plc and another [2009], which requires the Tribunal to consider what would have happened had none of the discriminatory conduct occurred. The Employment Tribunal applied a 35% reduction to the claimant’s discrimination compensation on the grounds that she was contemplating a move to both internal and external roles and that she might have left her employment anyway due to a restructure.  

The claimant appealed the reduction to her compensation and the respondent cross-appealed, arguing that the Tribunal had no jurisdiction to hear the sexual harassment claim, on the basis that the last incident of sexual harassment had occurred ten months before the claim was presented. 

The Employment Appeal Tribunal (EAT) 

The EAT held that the Employment Tribunal had erred in applying the principles of Chagger. It concluded that the Tribunal had failed to consider whether the claimant’s thoughts and actions about her employment and her future were affected by the harassment that she had suffered. The 35% Chagger reduction was consequently set aside. 

Further, the EAT dismissed the respondent’s cross-appeal, finding that the sexual harassment formed part of a continuing discriminatory state of affairs culminating in the grievance report, meaning that the claim for the sexual harassment was in time. 

Comment 

In this case, the EAT highlighted the need for employment tribunals to consider a robust ‘but for’ analysis when determining the amount of compensation to award, i.e. what position would the claimant have been in had the discriminatory conduct not occurred? 

In addition to this technical legal issue decided by the EAT, the first instance employment tribunal judgment also serves as a reminder of the seriousness with which a tribunal will treat claims of harassment and sexual harassment.  Whilst the employment tribunal judgment is not binding, it clearly demonstrates the importance of taking preventative measures such as having up-to-date policies in place, ensuring staff receive training, taking allegations of sexual harassment seriously and acting appropriately and promptly when allegations are upheld.  

Where allegations are raised, employers should ensure that complainants are given appropriate support, including encouragement and support to deal formally with such serious concerns; and that an effective, independent and prompt investigation takes place. Care should be taken with selecting the investigator, who should be appropriately trained and experienced. A careful analysis of the evidence should be undertaken when reaching decisions.  

We are seeing a significant increase in the number of claims being brought for sexual harassment and constructive dismissal.