Continuing Discrimination Time Limit Rules in the Employment Tribunal

Continuing discrimination occurs where unlawful treatment is not a single isolated incident but a series of linked acts, or an ongoing failure by an employer. In Employment Tribunal claims, this concept is particularly important because it can significantly affect time limits.

Most Employment Tribunal claims must be brought within three months minus one day. However, where discrimination is continuing, the limitation period may run from the last act in the series rather than from each individual incident. This can determine whether a claim is in time or out of time.

This article explains how continuing discrimination works, how tribunals assess it, and how it affects limitation periods under the Equality Act 2010.

Legal Framework for Continuing Discrimination Claims

Continuing discrimination claims arise under the Equality Act 2010. The Act prohibits unlawful treatment based on protected characteristics, including:

• Disability
• Sex
• Race
• Age
• Religion or belief
• Sexual orientation
• Gender reassignment

Discrimination can take different forms, including:

• Direct discrimination
• Indirect discrimination
• Harassment
• Victimisation
• Failure to make reasonable adjustments

Time limits for these claims are governed by Employment Tribunal rules and interpreted through case law principles on continuing acts.

Standard Employment Tribunal Time Limit

The general rule for discrimination claims is:

• 3 months minus 1 day from the date of the discriminatory act

However, this rule becomes more complex when discrimination occurs over time.

What Is Continuing Discrimination?

Continuing discrimination refers to a situation where unlawful conduct is not a one-off event but:

• A repeated pattern of behaviour
• A series of connected discriminatory acts
• An ongoing failure to act where there is a legal duty

The key legal question is whether the acts are sufficiently linked to form a “continuing act” or whether they are separate incidents.

Types of Continuing Discrimination

1. Series of Linked Acts

This occurs where multiple discriminatory actions are connected, such as:

• Repeated exclusion from opportunities
• Ongoing harassment by the same individuals
• Continuous negative treatment after disclosure of a protected characteristic

If linked, the tribunal may treat them as one continuing course of conduct.

2. Ongoing Failure to Make Reasonable Adjustments

In disability discrimination cases, continuing discrimination often arises from:

• Failure to provide workplace adjustments
• Ongoing refusal to adapt policies or equipment
• Persistent inaction despite repeated requests

This is commonly treated as continuing until the employer takes action or the situation changes.

3. Continuing Employment Policies or Practices

Discrimination may also be continuing where:

• A workplace policy has a discriminatory effect
• The policy remains in force over time
• The employee continues to be affected by it

How Continuing Discrimination Affects Time Limits

Where a tribunal finds a continuing act:

• The limitation period runs from the last act in the series
• Earlier incidents may be included even if they occurred outside the 3-month limit
• The entire course of conduct can be considered together

If the tribunal does not find a continuing act:

• Each incident has its own separate 3-month limitation period
• Older incidents may be out of time and excluded

The Key Legal Test for Continuing Acts

Tribunals assess whether incidents are sufficiently connected. Factors include:

• Same individuals involved in the conduct
• Similar type of treatment
• Common discriminatory motive
• Continuity of behaviour over time
• Whether there is a gap or break in the pattern

A long gap between incidents may indicate separate acts rather than a continuing course.

Examples of Continuing Discrimination

Example 1: Ongoing Exclusion

An employee with a disability is repeatedly excluded from team meetings over several months.

• Each exclusion may be part of a continuing act
• The time limit may run from the last exclusion

Example 2: Repeated Harassment

An employee experiences repeated unwanted comments over time from the same manager.

• Tribunal may treat this as a continuing course of harassment
• Limitation runs from the final incident

Example 3: Failure to Make Adjustments

An employer refuses to provide a necessary adjustment despite repeated requests.

• The failure continues until resolved
• The limitation period may run from when the employer finally addresses the issue or the employment ends

When Continuing Discrimination Does NOT Apply

Tribunals may reject a continuing act argument where:

• Incidents are isolated and unrelated
• Different decision-makers are involved
• There are long gaps between events
• Each act has a separate cause or justification

In these cases, each incident must be brought within its own limitation period.

ACAS Early Conciliation and Continuing Discrimination

Before most tribunal claims can proceed, ACAS Early Conciliation must take place.

This affects limitation periods because:

• The time limit is paused during conciliation
• Time resumes when the ACAS certificate is issued

However:

• Continuing discrimination rules still apply separately
• ACAS does not convert separate acts into a continuing act
• Time calculation still depends on tribunal assessment of the pattern of conduct

Interaction With Internal Grievances

Raising a grievance does not affect limitation rules.

Key principle:

• Internal procedures do not pause or extend time limits
• They also do not automatically establish continuing discrimination

However, they may provide evidence of an ongoing issue.

Importance of Identifying the Last Act

In continuing discrimination cases, the most important date is:

• The date of the final discriminatory act in the series

This date determines whether the claim is in time.

If the final act is within three months minus one day:

• The entire series may be included

If the final act is outside time:

• The whole claim may be out of time unless an extension applies

Tribunal Discretion to Extend Time

Even if continuing discrimination is not established, tribunals may extend time under the “just and equitable” test.

Factors include:

• Length of delay
• Reason for delay
• Whether the claimant acted promptly
• Availability of evidence
• Prejudice to the employer

This discretion is applied strictly and is not guaranteed.

Common Pitfalls in Continuing Discrimination Claims

1. Treating Separate Acts as One Pattern

Not all repeated behaviour is legally continuous. Tribunals require a clear link.

2. Missing the Final Act Deadline

Even if earlier acts are within time, the claim must still be brought within three months of the last act.

3. Assuming Ongoing Employment Equals Continuing Discrimination

Simply remaining in employment does not mean discrimination is continuing.

4. Delay in Filing Due to Informal Resolution Attempts

Waiting for workplace resolution does not pause the limitation period.

Practical Summary

• Continuing discrimination involves linked or ongoing unlawful conduct
• If established, time runs from the last act in the series
• Each act may otherwise have its own limitation period
• Tribunals assess connection between incidents carefully
• ACAS Early Conciliation pauses but does not redefine continuing acts
• Internal grievances do not affect time limits
• The final act is often decisive for limitation purposes

Final Thoughts

Continuing discrimination is a key concept in Employment Tribunal time limit rules. It allows multiple related acts of discrimination to be considered together, potentially extending the limitation period. However, tribunals apply strict tests to determine whether conduct is truly continuous. Correctly identifying the final act and understanding how incidents are connected is essential to ensuring a claim is brought in time.