Continuing Acts and Limitation Period Rules (Employment Tribunal)

Employment Tribunal claims in England and Wales are subject to strict statutory time limits, most commonly three months less one day from the date of the act complained of. In discrimination claims under the Equality Act 2010, however, the concept of a continuing act can significantly affect how limitation periods are calculated.

Where discrimination occurs as part of an ongoing course of conduct rather than a single isolated incident, the law may treat the entire period of behaviour as one continuous act. This can shift the limitation start date to the end of the conduct, potentially bringing earlier events within time.

This article explains how continuing acts operate, how tribunals apply limitation rules, and how these principles affect discrimination claims.

Legal Framework for Continuing Acts

The governing provision is section 123 of the Equality Act 2010, which sets out the limitation period for discrimination claims.

Section 123(3)(a) provides that:

• Conduct extending over a period is treated as done at the end of that period

This statutory wording forms the basis of the continuing act doctrine.

Tribunals also rely heavily on case law to determine whether separate incidents form part of a single continuing act or are legally distinct events.

What Is a Continuing Act?

A continuing act occurs where discriminatory behaviour is not a one-off event but part of an ongoing pattern or policy.

Instead of treating each incident separately, the tribunal may view the conduct as a single continuous course of discrimination.

Key consequence

If a continuing act is established:

• Time runs from the last act in the series, not the first
• Earlier incidents may still be included in the claim

This can significantly affect whether a claim is in time.

Examples of Continuing Acts

Continuing acts commonly arise in workplace discrimination cases involving ongoing behaviour or systems.

1. Ongoing harassment

Repeated unwanted conduct over weeks or months may be treated as a single continuing course of harassment.

2. Failure to make reasonable adjustments

Where an employer repeatedly fails to address a disabled employee's adjustment needs, the inaction may continue over time.

3. Discriminatory workplace policies

A policy applied consistently (for example in promotion or pay decisions) may constitute a continuing act.

4. Ongoing unequal treatment

A pattern of disadvantageous treatment linked to a protected characteristic may be considered continuous.

When Continuing Acts Do NOT Apply

Tribunals are careful not to treat all repeated events as continuing conduct.

Separate acts are usually treated individually where:

• Incidents are isolated and unrelated
• Significant time gaps exist between events
• Each act has a distinct decision-making process
• There is no ongoing policy or pattern

Example

• A discriminatory comment in January and a separate disciplinary decision in June may be treated as unrelated acts unless clearly linked.

Legal Test Used by Tribunals

Tribunals assess continuing acts by focusing on:

• Whether there is a common thread or policy
• Whether acts are linked in substance or purpose
• Whether conduct forms a sustained pattern
• Whether each act is independent or part of a sequence

The assessment is factual and case-specific.

Limitation Period and Continuing Acts

Standard rule

Most discrimination claims must be brought within:

• 3 months less 1 day

Effect of continuing act finding

If a continuing act is established:

• The limitation period starts from the final act in the series
• Earlier acts can be included even if they occurred outside the normal limitation period

Example

• First discriminatory act: January
• Ongoing conduct continues until May
• Limitation period runs from May

This may allow a claim to include all events from January onwards.

Interaction With ACAS Early Conciliation

ACAS Early Conciliation affects timing but not the existence of a continuing act.

Key principles:

• Time is paused when ACAS is notified
• Time resumes when the certificate is issued
• The continuing act analysis is separate from ACAS rules

If a continuing act is established, ACAS timing calculations apply from the end of that act period.

Continuing Acts vs Separate Acts: Common Disputes

A major issue in tribunal litigation is whether conduct is:

• One continuing act, or
• A series of separate discriminatory acts

Why it matters

• Continuing act → earlier events included
• Separate acts → older events may be out of time

Employer arguments

Employers often argue:

• Each incident was a separate decision
• There was no ongoing policy
• Time limits apply individually to each act

Claimant arguments

Claimants often argue:

• A consistent pattern of discrimination existed
• Events were part of a sustained course of conduct
• The discrimination was ongoing in nature

Failure to Act as a Continuing Act

Not all continuing discrimination involves positive acts.

A failure to act may also be continuous where:

• An employer repeatedly fails to address a known issue
• Adjustments or remedies are not implemented over time
• No clear decision to stop acting exists

However, tribunals may distinguish between:

• A single decision not to act (time runs from decision date)
• Ongoing omission (possible continuing act)

Practical Consequences of Continuing Acts

A finding of a continuing act can:

• Bring earlier incidents into time
• Avoid limitation arguments for older conduct
• Expand the scope of compensation claims
• Affect evidence and witness relevance

However, if the tribunal rejects the continuing act argument:

• Older incidents may be struck out as out of time
• Only recent acts will be considered

Common Errors in Continuing Act Arguments

1. Assuming repetition equals continuity

Repeated conduct is not automatically a continuing act.

2. Ignoring decision points

Separate managerial decisions often break continuity.

3. Overextending time coverage

Tribunals may reject attempts to link unrelated incidents.

4. Failing to identify a clear end date

Without a final act, limitation analysis becomes unclear.

Relationship With Out-of-Time Claims

If a continuing act is not established:

• Claimants may need to rely on extension of time rules
• The tribunal will then apply the just and equitable test

This makes the continuing act doctrine a key preliminary issue in many discrimination cases.

Key Takeaways

Continuing acts play a central role in determining limitation periods for discrimination claims under the Equality Act 2010. Where discriminatory conduct forms part of an ongoing course of behaviour, the tribunal may treat it as a single act ending on the date of the last incident. This shifts the limitation period and can bring earlier events within time. However, tribunals carefully distinguish between genuine continuing conduct and separate, unrelated acts. The outcome of this analysis often determines whether a discrimination claim is in time and capable of proceeding.