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Continuing discrimination
[ch 7: pages 254-255]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).
However, the law is complex and uncertain and early legal 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.
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 ban was a one-off event, so time started to run from the date it was issued.
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, ruled 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 reasonable adjustment, which would have enabled Jamil to continue to do her job, 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 during a period of sickness absence to make reasonable adjustments. However, adjustments will only be “reasonable” as long as there is a good chance that making them could 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, Monmouthshire County Council v Harris [2015] UKEAT0010/15/2310).