Continuing discrimination

If a woman claims discriminatory treatment, the fact that she does not suffer this treatment while away from work on maternity leave does not break the continuity of discrimination (Spencer v HM Prison Service EAT/0812/02).

In a disability case, discrimination continued during the employee’s absence on sick leave (Hendricks v Commissioner of Police of the Metropolis [2003] IRLR 96). More recently in Olenloa v North West London Hospitals NHS Trust ([2012] UKEAT/0599/11/2906), the EAT confirmed that employers are under a continuing obligation to make reasonable adjustments during sick leave, as long as those adjustments could help the worker get back to work.

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).

There can be a continuing act of discrimination where a policy disadvantages a person or group throughout their employment, and time can run from the date of their dismissal. However, there is a difference between the continuing existence of a discriminatory policy and its single or occasional application to a complainant. 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).

Similarly, in Okoro v Taylor Woodrow Construction ([2012] EWCA Civ 1590), a race discrimination claim, the Court of Appeal decided that banning an agency worker from site was a one-off event, rather than an “act extending over a period”, especially as there was no on-going relationship between Taylor Woodrow and the agency worker. Time started running from the date of the ban. If the original decision to ban the worker had been reconsidered and the ban continued, time would have started running again from the date of the reconsideration.