Continuing discrimination

In some circumstances, there can 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).

There can be a continuing discrimination where a policy disadvantages a person or group throughout their employment, meaning that 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 claimant. 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).

In Okoro v Taylor Woodrow Construction [2012] EWCA Civ 1590, the Court of Appeal decided that banning an agency worker from site was a one-off event rather than continuing discrimination, especially as there was no on-going relationship between Taylor Woodrow (the organisation that issued the ban) and the banned worker. As a result, time started running from the date of the ban. If the ban had been reconsidered and then continued, time would have restarted from the date of the fresh decision to ban.

In Network Rail Infrastructure Limited v Mitchell [2013] UKEAT 0057/12/2203, a decision to place a disabled worker on a formal capability review procedure was a continuing act, because it involved the employer putting in place a continuing discriminatory state of affairs. Time did not start running until the employee was dismissed or removed from the procedure, whichever happened first.

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 the discrimination (Spencer v HM Prison Service [2004] UKEAT 0812/02/0403).

In a disability discrimination claim, an employer remains under a continuing duty to make reasonable adjustments including, for example, during sick leave (Hendricks v Commissioner of Police of the Metropolis [2003] IRLR 96). This was confirmed in Olenloa v North West London Hospitals NHS Trust [2012] UKEAT/0599/11/2906.

In Secretary of State for Work & Pensions (Job Centre Plus) v Jamil UKEAT/0097/13/BA, the DWP continually refused to consider the transfer of a disabled worker with rheumatoid arthritis to an office closer to home. This, ruled the EAT, was continuing discrimination. Every day on which the DWP could have made the adjustment, there was a continuing breach of the duty.

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).