How do ‘continuing acts’ affect tribunal claims?

Mohamed Bangura and Liz Aylott explain the importance of time in the context of discrimination cases

The Equality Act 2010 protects employees with a range of characteristics. In many cases of direct discrimination, an employee may identify numerous incidents where the employer has treated them less favourably than others who do not possess the employee’s protected characteristic – in these situations, the issue of time becomes relevant. 

Discrimination claims must be brought within three months of the act complained of; time limits at tribunal are strict and the employee’s failure to submit a claim in time may result in it being struck out. At tribunal, an employer will usually argue that the earlier acts are out of time, but the tribunal has discretion and may take account of:

  • the reason for and extent of the delay; 
  • whether the claimant had legal advice; 
  • whether the individual was awaiting the outcome of a grievance or appeal; or
  • whether the delay prejudices a fair hearing and to what extent. 

Early conciliation via Acas is mandatory for claims and must be attempted before a claim can be submitted – the time for submitting a claim may be extended as a consequence.

It becomes difficult when there are a series of discriminatory acts with some out of time, but the Equality Act deals with an “ongoing situation or a continuing state of affairs” by placing conduct that extends over a period of time as if it were done at the end of this time. This seems fair if the series of incidents are linked, but sometimes these are isolated, unconnected incidents and the respondent is only responsible for an ongoing state of affairs, and continuing acts or omissions over time. 

The tribunal is aware that a vulnerable employee may put up with less favourable treatment before making a grievance or a tribunal claim. Behind the incidents of discrimination is a common connecting factor, and the acts need to be part of a series similar to one another. The tribunal may ask:

  • Is it the same individual or different individuals involved in the acts?
  • Were the acts committed by fellow employees and was there a connection between these employees?
  • Why did the fellow employees do what they did?

In Hendricks v The Commissioner of Police for the Metropolis (2003), Miss Hendricks, a police officer, claimed race and sex discrimination over 11 years. She described about 100 incidents, involving 50 or more officers, but only a few acts were within time. It was clear that Hendricks experienced a regime or prevailing way of life in which females and those of ethnic minority backgrounds were treated less favourably. This was viewed as a policy, regime or practice, and therefore a continuing act.

Advice for employers

HR professionals should promote practices to protect the employer, including:

  • developing an inclusive culture;
  • ensuring appraisal documentation is reviewed for issues and followed up;
  • ensuring policies and procedures are clearly accessible;
  • managing employees’ contact with HR with clarity, transparency and record keeping; and
  • ensuring all employees have effective and up-to-date equality and diversity training.

The employer’s legal representative will:

  • draft a clear list of issues;
  • obtain a deposit order – for claims that have little reasonable prospect of success; and
  • ensure that you are ready to defend issues of jurisdiction for continuing acts.

Mohamed Bangura is an employment law specialist at Neale Turk Rochfort Solicitors, and Liz Aylott is a curriculum specialist at Weir Training