Continuing discrimination

Case 5: The facts

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

The ruling

Whether there is a continuing act of discrimination is a question of fact for a tribunal, the Employment Appeal Tribunal (EAT) said. In this 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 EAT 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 UKEAT/0651/05