Difference Between A Continuing Act Of Discrimination & A One-Off Act With Continuing Consequences

Discrimination in the workplace is not uncommon and many employees will suffer unfavourable treatment due to them having a protected characteristic. Thankfully, the Equality Act 2010 (EqA), protects against discrimination at work and this key piece of legislation recognises several different forms of discrimination, including; direct discrimination, indirect discrimination, harassment and victimisation.

Unfortunately, discrimination can be generated by several sources in the working environment too. An employer’s, employee’s or agent’s actions can be discriminatory and the behaviour or comments experienced can cause both emotional and physical suffering. Should you decide to make a discrimination claim it is crucial to know that there are time frames you need to adhere to. Making a claim too late can result in you losing your case. 

The different types of discrimination 

Commonly, when taking a discrimination claim to the Employment Tribunal, employees will be claiming a one-off act of discrimination or a continuing act of discrimination. Ultimately, the number of discriminatory acts that have taken place will impact which type of discrimination you have experienced and, in turn, the claim you make. Below we have looked into these two different types of discrimination in more detail. 

One-off act of discrimination 

A one-off act of discrimination is quite simply when a one-off incident occurs which is discriminatory and single acts will be taken just as seriously by the Employment Tribunal. It is worth noting that a one-off act of discrimination can have continuing consequences and this will be considered by the Tribunal. For example, a one-off incident can cause stress and anxiety, and this can impact your life for the foreseeable future. 

Continuing act of discrimination 

As the name suggests, a continuing act of discrimination is when several incidents of a similar nature occur over a period of time and are all linked to one another. When discrimination is part of an ongoing process, the incidents can involve different people in the workplace but still be linked. Similarly, if you have complained about the incidents but they are still ongoing, they may amount to a continuing act of discrimination under employment law.  

The time limits for discrimination claims 

Whenever you are making a discrimination claim, whether the discrimination you experienced is a one-off act or a continuing act will impact the time limits you have. Section 123 of the EqA sets out the time limits for discrimination claims and the majority of claims need to be made within three months from the date the discrimination occurred. However, if the discrimination is ongoing, the time period will run from the most recent incident of discrimination. 

There is sometimes confusion surrounding whether discrimination is a one-off act with continuing consequences or a continuing act, and this can cause problems when making a discrimination claim. The case of Parr v MSR Partners LLP is a clear example of this. 

What happened in this case?

The claimant was an equity partner of the respondent’s firm of accountants. The partnership agreement stated that all partners had a normal retirement age of 60, however, this could be extended subject to the managing partner’s discretion. 

The claimant wanted to continue working after his normal retirement date which was 30th April 2018. In October 2017, the respondent decided that the claimant could continue working for an additional two years as an ordinary partner. The claimant agreed to this and following a de-equitisation agreement, the change in his status took effect after 30th April 2018.

In September 2018, the claimant found out that the respondent was going to sell part of the business and merge with another firm, BDO. In December 2018, he was informed that he would not receive a share of the proceeds of the sale as he was no longer an equity partner. 

After taking legal advice, the claimant decided to make a claim for age discrimination in January 2019. He claimed losses in the sum of just under £4 million, which is what he thought would have been his share of the proceeds of the sale and the losses caused by the lower level of his remuneration at BDO. The claimant argued that the discrimination was a continuing act because the retirement age rule was still in place. 

A preliminary hearing took place to determine whether the claim was filed out of time and if so, whether an extension of time should be granted. It was found that the claim was about “conduct extending over a period” and the conduct had been ongoing when the claim was filed. Therefore the claim was brought in time. However, the respondent did not think this was the case. 

The Employment Judge had to determine whether the decision at the preliminary hearing was correct and whether there was “conduct extending over a period”. It was discussed that this is not a case in which it is alleged that there has been a series of connected acts of discrimination which amount to “conduct extending over a period”. Rather, it is contended that there is a continuing discriminatory rule or policy. 

The final judgement was that the losses being claimed did not derive from the ongoing application of a general discriminatory rule, but from the one-off and permanent change in status brought about by the de-equitisation agreement. Ultimately, the claim is about the application of an allegedly discriminatory rule on a single occasion rather than on a continuing basis.

The Judge found that there was no “conduct extending over a period” in respect of the complaint raised in this case. What occurred was a one-off act that changed the nature of the relationship between the claimant and the respondent, which is considered an act which had continuing consequences, rather than conduct which extended over a period. 

Therefore, the case will be remitted to the Employment Judge to determine whether or not the necessary extension of time required for the presentation of the claim will be granted. 

Getting some advice from a workplace discrimination lawyer

Ultimately, knowing whether the discrimination you have experienced is a one-off act of discrimination with continuing consequences or a continuing act of discrimination will be crucial when making a claim. To prevent any problems concerning time limits, it is beneficial to get some legal advice from an experienced workplace discrimination lawyer. They can help you to determine what type of discrimination you experienced and, in turn, when you need to file your claim by to be within the time limits set out in the EqA. 

At Nationwide Employment Lawyers, our team will be happy to provide you with the advice and guidance you need if you have experienced discrimination in the workplace. We have decades of experience in employment law claims and we specialise in discrimination claims, so there is no one better to turn to for the sensible and sound advice you need. 

Our talented employment law specialists have a superb record in representing our clients too and we can assure you that the highest care will be provided to you and your case if you choose to take a claim to the Employment Tribunal. We pride ourselves on providing a seamless and cost-effective service, and the same dedicated team will be by your side throughout all legal proceedings. Do not hesitate to contact us today to discuss your claim in more detail.