Employment Alert No. 106 - Post Employment "Continuing Acts"
September 2, 2005
| What is the Issue? |
Post employment actions by an employer can be held to be discriminatory if the actions have a sufficiently close proximity to the employment relationship. For example, a refusal by an employer to give a reference or provision of an unfair reference can result in a finding of discrimination if the actions were for discriminatory reasons.
A Tribunal will not hear an employee’s claim of discrimination unless it is brought ‘in time’. This will normally be within three months of the act complained of. If the employee wishes the tribunal to consider incidents which occurred outside of this time limit, they will have to show that they were subjected to a series of connected discriminatory incidents which amounted to a ‘continuing discriminatory act’ and that at least the last incident was in time.
In the recent case of BHS v Walker , the EAT considered post employment discrimination in the context of a series of incidents which occurred both during and after the termination of the Claimant’s employment.
| What has been decided? |
Ms Walker brought a claim in the Employment Tribunal in relation to three incidents of sex discrimination. The first of these incidents occurred during her employment and the following two incidents occurred after the termination of her employment. It was held that the three incidents constituted a “continuing act” and as such the Tribunal were required to consider the first of these incidents even though it was outside the normal time limit for bringing a claim.
The EAT also decided that, when awarding compensation for injury to feelings, the Tribunal should have taken into account all three incidents complained of, including the two incidents that occurred after the termination of Ms Walker’s employment.
| What does this mean for employers? |
This case confirms that a continuing discriminatory act can involve a series of incidents spanning both pre and post termination of employment. As such, the case does not alter the current law but serves as a reminder that employers should ensure that they do not treat ex-employees in a discriminatory manner. An incident (including those occurring after the termination of employment) could be viewed as the last in a series of discriminatory acts which occurred prior to termination of employment. If a series of incidents constitutes a ‘continuing act’ the Tribunal will consider the connected incidents which would otherwise be outside the time limit.
