Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University. As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal. At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.
Claimant successfully appealed against a 35% Chagger reduction of compensation for discrimination as the Tribunal did not consider what would have happened had there been no discriminatory conduct.
The claimant was employed by the respondent and was based in Morocco. The claimant alleged that she was subject to harassment and sexual harassment by a colleague. She raised a grievance which led to a report on 15th November 2021. She then resigned on 21st November 2021 and brought a claim for constructive dismissal, harassment and sex discrimination.
At first instance, the claimant was successful in her claims (except a victimisation claim). The Tribunal, in terms of remedy, made a Polkey reduction of 35% and a Chagger reduction of 35% (coming from Chagger v Abbey National) in relation to the dismissal and discrimination compensation respectively. The basis of the reductions was the possibility that the claimant may have left either due to restructuring, reduced benefits package or that she wished to move to the United Kingdom.
The claimant appealed these reductions to the EAT. The respondent appealed arguing that the sexual harassment claim was out of time. The last act of sexual harassment pleaded by the claimant took place in April 2021.
The EAT dismissed the appeal relating to the Polkey reduction but allowed the appeal relating to the Chagger reduction. This was on the basis that the Tribunal had failed to consider what would have happened had there been no discriminatory conduct especially bearing in mind that the claimant’s thoughts on leaving were affected by the discriminatory behaviour she had been subject to. The respondent’s cross-appeal was dismissed with the EAT finding that there was a continuing discriminatory state of affairs which ended with the grievance report which was in November 2021.
This case primarily looks at the reductions that can be given to remedies for dismissal and discrimination. In terms of the discrimination, the use of the Chagger reduction was challenged with the claimant successfully arguing that the Tribunal failed to consider the potential effect had there not been any discriminatory conduct. This, of course, is a difficult one for the Tribunal to consider as it is hypothetical but it is one which has to be considered before a reduction could be made.
You can read the case in full here.
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