Continuing discrimination

Q: A member brought a complaint of disability discrimination about two years ago but has only just received the final outcome. Is it too late now to bring a claim in an employment tribunal over the issues, or could this amount to continuing discrimination?

A: To establish continuing discrimination, you have to be able to show that the employer maintains a discriminatory rule or practice as opposed to a one-off act or omission.

If an employee was refused a promotion on one occasion because s/he was disabled, for example, this would be a one-off act of discrimination. But if s/he applied for promotion every year for six years and was refused each time, that might be evidence of a policy of discrimination and could therefore amount to continuing discrimination.

If the complaints were about one-off acts, it is likely that you would be out of time. However, if you think that the grievance procedure itself was discriminatory, the outcome itself could be an act of discrimination.

A tribunal also has discretion to extend the time limit in a complaint of disability discrimination if it is “just and equitable” for it to do so.

For case examples, see Fearon v Chief constable of Derbyshire UKEAT/0445/02 and Spencer v HM Prison Service UKEAT/0812/ 02; these were race and sex discrimination claims, but the principle of continuing discrimination is the same.