Continuing discrimination 




Occasionally there will be “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 is complex and uncertain, and early legal advice must be taken to ensure the deadline 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. This meant that the claim had to be brought within three months (less one day) of the refusal (Tyagi v BBC World Service [2001] IRLR 465);



• where workers were banned from a construction site by a contractor, the ban was a one-off act. Again, the claim had to be brought within three months (less one day) of the ban (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 created a continuing discriminatory state of affairs, put in place by the employer. This meant that 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);



• an employer’s decision to launch a disciplinary process to investigate allegations of race discrimination and harassment was a continuing act, because it resulted in an ongoing disciplinary investigation and hearing. This meant that time continued to run during the investigation and disciplinary process (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).