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Facebook comments continuing acts for discrimination purposes

05 December 2012 #Employment


In Novak v Phones 4U Ltd UKEAT 0279/12 the EAT considered whether Facebook entries made about an employee by various colleagues were part of a continuing act for discrimination purposes.

Under Section 123(1), Equality Act 2010, a discrimination claim must normally be submitted to an employment tribunal before the end of "the period of three months starting with the date of the act to which the complaint relates".

In many cases the discrimination complained of will be a single event, however the difficulty arises in other cases where the discrimination complained of is made up of a series of incidents.

Section 123(3)(a) of the Equality Act 2010 states that, where an act or acts of discrimination extend over a period (referred to as a "continuing act"), they are treated as having occurred at the end of that period. Therefore, time will not start to run until the end of the course of discriminatory conduct.

The test for a "continuing act" is whether the employer is responsible for an "an ongoing situation or a continuing state of affairs" in which the acts of discrimination occurred, as opposed to a series of unconnected or isolated incidents

Facts

Mr Novak had a disability and was a manager at a branch of Phones 4U. He fell down the stairs at work in February 2010 and had been absent from work ever since. He made complaints of disability and race discrimination after colleagues posted comments on Facebook.

The complaints were about entries made on Facebook by work colleagues, said to be acts of discrimination on the grounds of disability and nationality as Mr Novak was American. A picture recreating the position of his fall had also been uploaded.

For the purposes of the "continuing act" point, there were two relevant periods when postings were made on Facebook by the work colleagues in question: 31 March to 21 May 2010, and 26 July to 28 July 2010. The issue here was whether two sets of postings on Facebook, 7 weeks apart, were a continuing act or not.

One aspect of the claim against the respondent was that it failed to take steps to stop a continuing state of affairs, namely the postings on Facebook.

The judge in the Employment Tribunal held that although the second set of comments was linked to the first set, it did not involve the same individuals, the subject matter was different and there was a break of 7 weeks between the postings.

The claimant appealed against the decision that the two periods of Facebook postings were not part of the same continuing act.

The EAT decision

The EAT held the judge  in the Employment Tribunal had made an error in holding the entries were not linked by subject matter, people and time, so as to create a continuing act. The EAT found that the entries were linked in terms of subject matter and the participants - spanning a period of 17 weeks, with an interruption of 7 weeks, the comments were also sufficiently linked in time. The case was remitted to the Employment Tribunal to be heard.

Implications

This case highlights how apparently separate or isolated acts of alleged discrimination over time can be pieced together to form a continuing act. This can be vital in claimants getting over the three month limitation hurdle and employers should aware that allegations going back some months or years can effectively be “resurrected” by employees by linking them with recent allegations. Care must therefore be taken in destroying documents relating to discrimination allegations as applying a simple 3 month rule could lead to vital evidence being lost.

Clarkslegal, specialist Employment lawyers in London, Reading and throughout the Thames Valley.
For further information about this or any other Employment matter please contact Clarkslegal's employment team by email at employmentunit@clarkslegal.com by telephone 020 7539 8000 (London office), 0118 958 5321 (Reading office) or by completing the form on this page.

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