Continuing discrimination 



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). 



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. Every case is different, because it will depend on its particular facts. Here are some other examples, taken from different cases:



• where a job applicant was turned down because of a discriminatory policy, this was not “continuing discrimination”, and the claim had to be brought within three months of the refusal (Tyagi v BBC World Service [2001] IRLR 465);


• 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);



• a 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. 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);



• refusal to relocate a disabled worker with rheumatoid arthritis to an office closer to her home was a continuing breach of the statutory duty to make reasonable adjustments (Secretary of State for Work & Pensions (Job Centre Plus) v Jamil [2013] UKEAT/0097/13/BA); and


• 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” while there is still a good chance that making them could help the absent worker get back to work (Olenloa v North West London Hospitals NHS Trust [2012] UKEAT/0599/11/2906, Monmouthshire County Council v Harris [2015] UKEAT0010/15/2310).