Continuing acts of discrimination
Continuing Acts of Discrimination
The appropriate test for a “continuing act” is whether an employer is responsible for an “an ongoing situation or a continuing state of affairs” in relation to the acts of discrimination, as opposed to a series of unconnected or isolated incidents.
This means that where you have been subject to discrimination at work over a period of time whether from one or various individuals, you will not be out of time to bring a discrimination claim in the employment tribunal if you can prove that your employer’s acts or omissions which occurred more than 3 months ago are evidence of a continuing discriminatory state of affairs.
Some examples
- Where you have suffered racial harassment throughout your employment by several colleagues who continually make racist jokes. You may have complained on many occasions, but the situation is still continuing. You want to bring a discrimination claim against your employer. In this situation, you may be able to show that the discrimination is continuing in that all the incidents are linked to each other, including a failure to act by your employer. The employment tribunal would look at whether there is evidence of an ongoing situation by looking at whether the behaviour complained of is of a similar nature.
- The refusal by your employer to properly address or accept a complaint of discrimination via a grievance or appeal that you have lodged may constitute a continuing act. It is important that your employer’s conduct during this process is carefully scrutinised.
- A repeated refusal by your employer to do something over a period of time (whether in accordance with its policies or otherwise) such as continued refusals to allow you to work part time despite multiple requests from you to do so.
It is important to contrast where the discrimination is a one-off incident which has ongoing consequences (such as a falling out with your manager). In this scenario, the time limit runs from the actual incident rather than during or at the end of the continuing consequences.
It is for you, as the employee, to prove that there is evidence of a continuing discriminatory state of affairs, and this may be possible even if you have been off work with sickness for a long period of time.