Continuous discrimination

Arthur v London Eastern Railway Ltd (t/a one Stansted Express) [2006] All ER (D) 300 (Oct); NLJ 5 January

The employment tribunal may hear a claim of discrimination which is brought within three months of the discriminatory act to which the complaint relates (Employment Rights Act 1996, s48(3)(a)). Section 48(4) provides that where an act extends over a period, it is treated as taking place on the last day of that period. A ‘continuing act’ means a ‘continuous discriminatory state of affairs’. Where the complaint is of a series of similar acts, the tribunal may hear the claim if the last of them fell within the three-month limit. To determine whether the acts are part of a series, some evidence is needed to determine what link, if any, there is between the acts in the three-month period and the acts outside the three-month period. It is necessary to look at all the circumstances surrounding the acts. Were they all committed by fellow employees? If not, what connection, if any, was there between the alleged perpetrators? Were the actions organised or concerted in some way? It would also be relevant to enquire why they did what is alleged. In many cases, it would be better for employment tribunals to hear all the evidence in a case before deciding limitation questions. If employment tribunals do decide to hold preliminary hearings to decide limitation issues, bearing in mind that this may not save time or cost, it is advisable that some evidence be heard to decide on such matters effectively. The tribunal had been wrong to rule some acts out of time through insufficient linkage, on submissions alone.