Continuing discrimination 





A pattern of discriminatory behaviour over time can amount to “continuing discrimination”. This means 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). The law recognises that a pattern of discriminatory behaviour at work can unfold over time. However, the law is complicated and early legal advice should always be sought to ensure that the deadline for bringing the claim is not missed. 


In summary, the cases draw a distinction between a “one-off” discriminatory act and the continuing existence of a discriminatory state of affairs. Every case depends on its own particular facts. Here are some examples, taken from a range of different cases:



• where a job applicant was turned down because of a discriminatory policy, this was not “continuing discrimination”. Instead, it was a one-off act. Time started to run immediately and as a result, the claim was out of time (Tyagi v BBC World Service [2001] IRLR 465);




• an order banning workers from a construction site was a one-off act. Time started to run immediately and as a result the claim was out of time (Okoro v Taylor Woodrow Construction [2012] EWCA Civ 1590);





• an employer’s decision to place a disabled worker on a formal capability review procedure was a continuing act, because it put in place a continuing discriminatory state of affairs. Time did not start to run until the employee was dismissed or removed from the procedure, whichever happened first, so the claim was still in time (Network Rail Infrastructure Limited v Mitchell [2013] UKEAT 0057/12/2203);
and



• the launch of a disciplinary investigation into allegations of race discrimination and harassment was a continuing act because it resulted in an ongoing investigation and hearing. Time continued to run throughout the process, meaning that the claim was still in time (Hale v Brighton and Sussex University Hospitals NHS Trust [2018] UKEAT/0342/16/LA). 




Where a woman claims discriminatory treatment at work, the fact that she does not suffer this treatment while away from work on maternity leave will not break the continuity of the discrimination (Spencer v HM Prison Service [2004] UKEAT 0812/02/0403).



In a claim alleging failure to make reasonable adjustments, time for bringing the claim starts to run at the end of the period in which the employer might reasonably have expected to comply with their duty. This period should be assessed from the claimant’s viewpoint, taking into account what they knew or should have known at that time, since it would be unfair to prejudice a claimant who reasonably believes that an employer is doing something to address their disadvantage when nothing is in fact being done (Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640).