What constitutes a ‘continuing act’?

Employment Tribunal claims alleging discrimination can only be considered if the relevant act / omission occurred within three months of the claim being issued.

However, the three-month time window can be extended to incorporate acts that pre-date the cut off point if the Claimant can show that the earlier acts were connected to the later acts (that occurred ‘in time’). Together the acts / omissions form a ‘continuing act’ as permitted by s.123(3) of the Equality Act 2010.

In Worcestershire Health and Care NHS Trust v Allen [2024] EAT 40, the EAT deliberated on what constitutes a ‘continuing act’.  In that case, there were a series of complaints that, whilst all concerned with age and health matters, did not indicate similar breaches of the various provisions contained within the Equality Act 2010.

Without raising so much as a flush, let alone a sweat, the EAT determined that the constituent parts of a ‘continuing act’ must have a nexus and be essentially the same sorts of act.  In this case, for example, it was held that a failure to properly investigate a grievance related to age discrimination was not sufficiently similar to link up with another claim of age discrimination of a different sort.

The indications coming from the EAT since Commissioner of Police for the Metropolis v Hendrick [2003] ICR 530, is that there must be a continuing state of affairs within which various acts / omissions are founded on the same sort of statutory breach.