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Continuing discrimination
[ch 6: pages 198-199]In some circumstances there will be continuing discrimination, meaning that time does not start to run until the discriminatory state of affairs is removed or the employee is dismissed, whichever happens first (section 123(3) EA 10).
There can be continuing discrimination where a policy disadvantages someone throughout their employment meaning that the time limit for bringing the claim does not start until the employment ends or the policy is lifted, whichever happens first. However, the law is complex and uncertain and early advice must be taken to ensure the deadline is not missed. In particular the cases draw a distinction between the continuing existence of a discriminatory policy and its single or occasional application to a claimant.
For example, a claim based on refusal of a job because of a discriminatory policy must be brought within three months of the refusal (Tyagi v BBC World Service [2001] IRLR 465). Here are some other examples:
There was no continuing discrimination when contractor, Taylor Woodrow, banned agency workers from its site. The act of banning the workers was a one-off event, so time started to run from the date of the ban, said the Court of Appeal. The position might have been different if there had been an ongoing relationship between Taylor Woodrow and the banned workers.
If the ban had been reconsidered and then continued, time would have restarted from the date of the fresh decision to ban, but there was no evidence that this is what happened so the claim, brought more than three months after the date of the ban, was out of time.
Okoro v Taylor Woodrow Construction [2012] EWCA Civ 1590
www.bailii.org/ew/cases/EWCA/Civ/2012/1590.html
A decision to place a disabled worker on a formal capability review procedure was a continuing act, said the EAT, because it involved a continuing discriminatory state of affairs put in place by the employer. Time did not start running until the employee was dismissed or removed from the procedure, whichever happened first.
Network Rail Infrastructure Limited v Mitchell [2013] UKEAT 0057/12/2203
www.bailii.org/uk/cases/UKEAT/2013/0057_12_2203.html
The DWP’s unreasonable refusal to relocate a disabled worker who was suffering from rheumatoid arthritis to an office closer to her home was continuing discrimination, ruled the EAT. Every day on which the DWP could have made the adjustment represented a continuing breach of its duty and a continuing act of discrimination.
Secretary of State for Work & Pensions (Job Centre Plus) v Jamil [2013] UKEAT/0097/13/BA
Where a woman claims discriminatory treatment at work, the fact that she does not suffer this treatment while away from work on maternity leave does not break the continuity of the discrimination (Spencer v HM Prison Service [2004] UKEAT 0812/02/0403).
In a disability discrimination claim, an employer remains under a continuing duty throughout a period of sickness absence to make reasonable adjustments to help the absent worker get back to work (Hendricks v Commissioner of Police of the Metropolis [2003] IRLR 96, Olenloa v North West London Hospitals NHS Trust [2012] UKEAT/0599/11/2906).
Where an employer promises but fails to take remedial steps to prevent a recurrence of discrimination, this can amount to continuing discrimination (Littlewoods v Traynor [1993] IRLR 154).