Continuing discrimination

Case 13: The facts

Dr Vivienne Lyfar brought a race discrimination claim more than three months after some of the incidents she complained of (an allegation made against her, the subsequent disciplinary proceedings and her grievance about those proceedings). This meant that they could not form part of her claim, unless they formed part of a continuing act of discrimination or the tribunal agreed to extend the time limit.

The ruling

The Court of Appeal acknowledged that it is for a tribunal to decide whether there is a continuing act of discrimination. In Lyfar's case, the tribunal had concluded that the disciplinary proceedings constituted a continuing act but the subsequent events were separate; it had applied the correct legal test of a continuing act of discrimination by looking for an "ongoing situation" and evidence of a discriminatory "policy, practice or regime".

The court, like the Employment Appeal Tribunal before it (see Workplace Report, June 2006), upheld the tribunal's decision to strike out those parts of Lyfar's claim that were out of time.

Lyfar v Brighton & Sussex University Hospitals Trust [2006] EWCA Civ 1548