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Continuing acts of discrimination via Facebook

On 26th February 2010 Mr Novak, an American, fell down the stairs at work and has been off work ever since. A number of his colleagues posted derogatory comments about him and his injuries on Facebook. On 9th September 2010 Mr Novak brought claims of disability and race discrimination, based on the comments and his employer’s failure to take action to stop them.

At a Pre-Hearing Review, it was argued that some of the claims were out of time. A discrimination claim must be submitted to the tribunal within 3 months of the date of the act complained about. If, however, there are a series of incidents extending over a period (“a continuing act”), the time period for lodging a claim does not start until the end of the course of discriminatory conduct.

The Facebook posts were made over two periods: from 31st March until 21st May 2010 and then between 26th and 28th July 2010. Mr Novak’s complaints in relation to the first series of posts would be out of time unless all the comments were found to be linked.

The EAT decided that two sets of Facebook entries could be linked into one continuing act of discrimination. The posts were made by the same individuals and on the same subject. The fact that they were posted across two periods separated by 7 weeks did not automatically prevent there being a continuing act of discrimination. The case was sent back to the tribunal to decide the time bar point at a full hearing.

The EAT was not required to decide the interesting question of whether an act continues throughout the whole period when a Facebook entry is up.

Novak v Phones 4U Ltd  UKEAT/027/12.

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