Continuing Act of Discrimination

Andrew Boast
5 min read
Discrimination Claim against your employer | Explained By Employment Law Friend
The time limit for bringing discrimination claims, like the time limit for virtually all claims, is three months less one day. For example if something happens on 10 July, then the time limit for commencing ACAS conciliation is 9 October. It doesn’t matter how many days are in each month, or the total number of days or week that has passed. The deadline for contacting ACAS is always midnight three months, but one day earlier.

The deadline can be extended in discrimination cases where a tribunal considers it “just and equitable” to do so. Although the burden is on the employee to show why this is the case, in practice providing the delay is not that long, say only a few weeks, then it is not too difficult to get the limitation extended, although this is not without risks and does depend on the Judge. Many cases of discrimination involve an allegation that discrimination has continued over a time.

For example, if someone is bullied because of their religion over a period of two years, and this occurs, at least weekly, then they would be able to bring a claim for all of the bullying, and not just anything which occurred within the last three months, by using the concept of a “continuing act”.

This is when the bullying is considered in law to be one act, and providing the last time this happened is within three months, then it is considered to be within three months. When claiming that something is a continuing act, it is important that there are no significant breaks in the discrimination you are alleging. This does not mean it has to be every day, week or even month, but there does need to be a regular pattern without a break.

For example if you are bullied for discriminatory reasons by a particular employee, who you then have no contact with for a year, because they are on sick leave or maternity leave, and then they return and the behaviour continues, you would generally not be able to bring a later claim for the actions which occurred before they took their break from working. (You could of course have brought a claim at the time for this.)

It is difficult to give exact guidelines on when a continuing act will be broken, because whether something is sufficient to break the continuing act simply depends on all the circumstances and different Judges might come to different decisions. However the longer the break the more likely it is that a Judge will decide that there is no continuing act.

To start a claim for discrimination, you need to contact ACAS to gain an Early Conciliation Certificate and once you have this, you need to put in a claim. Many people choose to get legal advice before doing this because discrimination law can be complex.

It is important when claiming discrimination that you are able to link the bad conduct you have experienced “with” the discrimination you are bringing. For example, it is not enough that you are disabled and have been badly treated; you need to show that you were badly treated because you were disabled.

It may be that you work for a nasty employer or have unpleasant colleagues, but unless they do something which is because of a protected characteristic (race, sex, disability etc), then there will be no discrimination claim. Therefore, when putting in a claim, focus on those things where you feel you can show the reason was discriminatory.

Although it is not essential it can often be helpful to raise matters you are concerned about in a grievance. That leaves time for your employer to resolve them, and can provide more recent evidence about what happened which will be useful later. If an employee does not raise discrimination complaints in a grievance they are likely to be asked why not at a tribunal, and particularly if the evidence is disputed and oral – for example in he said/she said situations - it is possible not raising things earlier will be used to suggest they did not happen, or were less serious than you suggested.

Also, if you do not raise matters in a grievance, then this can be used to reduce your compensation by up to a quarter of what it would otherwise be. You do not need to wait until a grievance is completed until you put in a claim, and it is important to always make sure your claim is in time, even if that means not waiting for the grievance outcome.

Frequently Asked Questions
The Employment Tribunal has 3 bands which give certain amounts of compensation per band:

  • Top Band (£29600-£49300)
  • Middle Band (£9900-£29600)
  • Lower Band (£990-£9900

You can make a complaint to your employer, which they should take seriously. This can be done if you have experienced:

  • Age discrimination
  • Disability discrimination
  • Gender reassignment discrimination
  • Marriage and civil partnership discrimination
  • Pregnancy and maternity discrimination
  • Race discrimination
  • Religion and belief discrimination
  • Sex discrimination
  • Sexual orientation

You can claim compensation if you have suffered from physical or mental health problems.
Discrimination at work is where you as an employee is treated unfairly due to:

  • Age
  • Disability
  • Gender reassignment
  • Marriage and Civil Partnership
  • Pregnancy and Maternity
  • Race
  • Religion and Belief
  • Sex
  • Sexual orientation

Do you have a problem with your employer?
There is much more to winning your case than simply being in the right, our employment law specialist advisors know the law and legal tactics to make sure you get the best chance at a fair settlement. Get in contact with us and see how we can help.

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This content is provided free of charge for information purposes only. It does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of our company. For employment law advice please get in contact and speak to your employment law solicitors.
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