When Separate Incidents May Form One Continuing Act

Why classification matters

Employment discrimination rarely arrives as one self-contained event. A claimant may describe missed progression, exclusion from significant work, repeated criticism, adverse performance treatment, redundancy and a grievance process that is said to reproduce the same underlying problem. Some incidents may involve one business unit; later incidents may involve another. Different managers may make different decisions for apparently different reasons.

The time-limit question is not answered merely by dividing that history into separate dates. Section 123 of the Equality Act 2010 distinguishes individual acts from conduct extending over a period. If the alleged conduct extends over a period, it is treated as occurring at the end of that period. If the incidents are unconnected, time ordinarily runs separately from each act.

That classification can determine whether the Tribunal hears the factual case at all. It must therefore be approached with both procedural discipline and caution. A claimant cannot convert unrelated workplace dissatisfaction into a continuing act simply by calling it a pattern. A respondent cannot defeat an arguable pattern merely by showing that different people, departments or decision types were involved.

The claim and preliminary decision

Mr Waithaka had worked within the Barclays group since 2010 and was a Vice-President in the Treasury department by the time of the relevant events. His employment ended on 31 October 2021 following notice of redundancy. He presented his Tribunal claim on 5 September 2022.

The amended case was extensive. It included 33 allegations of direct race discrimination, one harassment complaint and 15 allegations of victimisation. The pleaded events extended from early 2020 through the later grievance process, with the final grievance appeal decision given in April 2023.

Barclays sought to strike out the pre-termination complaints as out of time. Mr Waithaka argued that the pleaded events formed conduct extending over a period, ending with the later grievance handling. Alternatively, he asked the Tribunal to extend time because it was just and equitable to do so.

The Employment Tribunal rejected the continuing-act argument as having no reasonable prospect of success and later refused the extension application. The EAT set aside the strike-out conclusion. It held that no reasonable tribunal, properly directing itself on the law and the available material, could have concluded that the continuing-act case was hopeless.

The statutory continuing-act route

Section 123(3)(a) of the Equality Act 2010 provides that conduct extending over a period is treated as done at the end of the period. The leading approach remains the Court of Appeal's decision in Commissioner of Police of the Metropolis v Hendricks.

Hendricks warns against treating concepts such as a policy, rule, scheme, regime or practice as a closed list. Those are examples of circumstances in which conduct may extend over a period. The broader inquiry is whether the substance of the complaint describes an ongoing situation or continuing state of affairs, rather than a succession of isolated and unconnected acts.

The doctrine is not an automatic aggregation rule. Temporal proximity may support a connection, but timing alone is not enough. Repeated involvement by the same manager may be relevant, but it is not essential. A grievance concerning earlier treatment may form part of the alleged continuing situation, but it does not do so merely because it revisits the same history.

The alleged pattern must be examined as a whole

The original Tribunal categorised the pre-termination allegations and then identified differences between them. Some concerned criticism, some allocation of work, some progression, some victimisation and one harassment. The Tribunal also placed weight on the gap between some of the earlier events and the later grievance decisions.

Classification can assist case management, but it can distort the time-limit analysis if each category is treated as self-contained before the alleged connection is examined. The claimant's case was not simply that several adverse events occurred. It was that those events, across different business units and management functions, were manifestations of a wider alleged pattern affecting black employees and that the grievance handling continued that situation.

The EAT did not endorse that factual case. It held that the Tribunal had not been entitled to remove it summarily. The pleaded history, witness evidence and reliance on internal organisational material gave the case enough substance to require evaluation at a full hearing.

This is the practical significance of Waithaka. A preliminary decision-maker must engage with the claimant's proposed connecting mechanism. It is not enough to point to surface differences among the incidents and treat those differences as self-proving disconnection.

Different actors do not end the inquiry

The Employment Tribunal regarded the involvement of different managers as weakening the continuing-act case. It also noted that the claimant did not allege that the managers had colluded with one another.

The EAT considered those matters largely peripheral. Different actors and different types of decision were among the reasons why the claimant needed to rely on the continuing-act provision; they were not, without more, reasons why the provision could not apply.

Organisational treatment can be distributed. Recruitment, work allocation, performance management, promotion, redundancy and grievance handling are often performed by different people. A claimant may allege that independent actors responded within the same continuing state of affairs. A respondent may contend that each actor made a separate decision for a distinct and lawful reason.

Neither position can be resolved by counting decision-makers. The inquiry must consider what, if anything, connects their decisions: common information, shared processes, repeated assumptions, organisational practices, escalation history, statistical or internal material, and the treatment of complaints when they were raised.

The danger of deciding the “reason why” question too early

The most important procedural point in the judgment concerns the difference between what happened and why it happened. Barclays did not necessarily dispute that the underlying workplace events occurred. The contested issue was whether the treatment was because of race, because of protected acts, or for separate non-discriminatory reasons.

The original Tribunal considered that the continuing-act question could be resolved without a full evidential hearing because the claimant had already provided a detailed account of the events. The EAT rejected that approach. In a discrimination claim, the reason for the treatment is not peripheral. It is central to liability and may also determine whether several incidents are connected by a common discriminatory situation.

That question may require disclosure, witness statements, cross-examination and evaluation of the employer's explanations. The evidential position at a preliminary hearing can be materially incomplete. A claimant may lack access to comparative information, decision records or internal communications. A respondent's explanation may be credible, but it may still need to be tested against the complete record.

Strike-out should not become a compressed merits hearing. Where the continuing-act issue depends on the same disputed inferences and explanations that will determine discrimination, deciding it summarily risks resolving the substance under the label of procedure.

Contextual and institutional material

Mr Waithaka relied on internal Barclays reports from 2018 to 2020. His evidence described those reports as recording prejudice towards black employees and under-representation at director and managing-director levels. The reports themselves were apparently not before the Employment Tribunal.

The EAT did not make findings about their accuracy or legal effect. Their importance at the strike-out stage was narrower. They meant the continuing-act case was not based on assertion alone. The material was capable of supporting an argument that the pleaded events might be connected by a broader organisational situation.

Contextual evidence requires careful handling. A general diversity report does not prove that a particular manager discriminated against a particular employee. Statistical under-representation does not establish the reason for an individual decision. Equally, such material may be relevant when the claimant's case concerns repeated treatment across different parts of an organisation and asks the Tribunal to draw inferences from the whole picture.

The correct use of institutional material is therefore evidential, not rhetorical. It must be identified, disclosed, contextualised and linked to the decisions in issue. The respondent must have a proper opportunity to challenge its meaning, scope and relevance.

The strike-out standard

The preliminary hearing in Waithaka applied the 2013 Employment Tribunal Rules, under which rule 37 permitted strike-out where a claim had no reasonable prospect of success. The current Employment Tribunal Procedure Rules 2024 retain the strike-out power at rule 38.

The EAT emphasised the need for particular caution in race discrimination claims. Such claims frequently depend on inferences from surrounding facts rather than overt discriminatory words. The absence of an expressly racial comment or an allegation that a manager was personally “motivated by race” does not make a direct discrimination claim legally defective.

The Tribunal must take the claimant's realistic case at its highest for the purpose of the application. That does not require acceptance of fanciful allegations or legal conclusions unsupported by pleaded facts. It requires the Tribunal to distinguish a claim that may ultimately fail from one that cannot realistically succeed.

Continuing act and extension of time are separate routes

The judgment preserves a distinction that is often blurred. Under the continuing-act route, the Tribunal determines when the alleged conduct is treated as having occurred. If the incidents form conduct extending over a period, time runs from the end of that period.

The just-and-equitable route accepts that the claim was presented late and asks whether the Tribunal should exercise its discretion to permit it to proceed. The factors may include the length and reasons for delay, promptness after the claimant understood the position, the effect of delay on the respondent's ability to defend the claim and the overall justice of allowing or refusing the extension.

Mr Waithaka succeeded on the continuing-act strike-out issue, so the extension appeal became academic. The EAT nevertheless indicated that it would have upheld the ultimate refusal to extend time. Although parts of the Tribunal's reasoning were flawed, it had been entitled to find that the claimant did not act promptly after receiving legal advice and that the delay might prejudice Barclays' defence.

The judgment therefore does not weaken statutory time limits. A claimant should notify Acas and protect time even while pursuing an internal grievance. A continuing-act argument should be pleaded as a legal and factual case, not treated as insurance against delay.

Delay in producing the decision

Approximately 15 months passed between the preliminary hearing in July 2023 and the written record of the relevant decisions in October 2024. Written reasons for the strike-out decision followed in January 2025.

The EAT described the delay as serious, significant and very regrettable. It did not treat delay alone as an automatic reason to set the decision aside. Applying Bangs v Connex South Eastern Ltd, the EAT explained that an appeal still requires an error of law, perversity or a serious procedural irregularity affecting the fairness or integrity of the decision.

Delay can nevertheless matter as context. It may increase scrutiny of factual reasoning, coherence and the adequacy of reasons. In Waithaka, the successful appeal rested on the substantive errors in the continuing-act analysis, not on a freestanding rule that a delayed judgment is invalid.

Practical pleading for claimants

A claimant relying on section 123(3)(a) should do more than state that every incident forms part of a continuing act. The pleading should identify the alleged continuing state of affairs and explain how the incidents are manifestations of it.

The final incident relied upon must be identified clearly. If grievance handling is said to continue the earlier discrimination or victimisation, the pleading should explain the connection. A grievance decision does not automatically extend time for the matters complained about in the grievance.

The claimant should distinguish direct discrimination, harassment and victimisation while explaining any common factual connection. The existence of different legal labels does not prevent a continuing situation, but each statutory complaint still requires its own elements to be proved.

Practical analysis for respondents

Waithaka does not prevent respondents from challenging artificially connected claims. A respondent may show that the incidents arose from different processes, involved distinct evidence and were made by independent decision-makers for reasons that do not support a common situation.

The strongest challenge addresses the claimant's proposed connecting mechanism directly. It should identify where the alleged chain breaks, why the later act is not part of the same situation, and which evidence makes the issue suitable for preliminary determination.

A strike-out application is less likely to succeed where the proposed disconnection depends on accepting the respondent's factual explanation before witnesses have been heard. The respondent should consider whether a preliminary issue hearing with defined evidence, an application for further particulars, a deposit order or focused case management offers a more proportionate route.

Respondent fairness remains important. A broad continuing-act pleading should not leave the employer guessing how dozens of allegations are said to connect. The claimant must articulate the case; the respondent must not be required to reverse-engineer it from a long chronology.

A disciplined decision map

The continuing-act issue is easier to manage when the Tribunal separates legal classification from factual merits without pretending that they are always independent.