Out of time

When deciding whether to grant an amendment to extend time to introduce a new claim to existing proceedings, the Employment Appeal Tribunal (EAT) has held in Galilee v Commissioner of Police of the Metropolis that tribunals do not always have to determine limitation points at that time.

Basic facts

After he was dismissed from his role as a police officer by the Met police in February 2015, Mr Galilee (acting in person) lodged claims about disability discrimination, victimisation and unfair dismissal.

He then engaged solicitors who applied to amend his case to include further and alternative claims of disability discrimination on the basis that they all formed part of a continuing act up to the dismissal. The Met argued that these further claims were out of time. It also argued judicial immunity from complaints about the dismissal.

Tribunal decision

At a preliminary hearing, before hearing any evidence, the tribunal refused the application to amend the case. Amongst other reasons, the judge found that if the amendment were to be allowed, the Met would lose the opportunity to argue time points.

Mr Galilee appealed to the EAT, focussing on how the tribunal interpreted the common law doctrine of “relation back” in its decision. This concept is rarely considered in employment law, but it means a claim that is accepted by way of amendment is considered as presented on the date of the original claim, rather than the date the amendment was presented or accepted. Mr Galilee argued that the doctrine did not apply, so the tribunal made an error in law, as the correct exercise of judicial discretion would have been to allow the amendment and to leave to a future hearing whether or not to extend time on the basis that it was just and equitable to do so.

In the interim period, Mr Galilee’s remaining claims were struck out for reasons that included the judicial immunity defence. The Supreme Court has (in a different case against the same employer) recently found this defence impermissible.

EAT decision

The EAT allowed the appeal and agreed that amendments which introduce new claims take effect (for the purpose of limitation) at the time permission is given to amend. 

Nor is there any mandatory rule that all time limitation issues have to be decided before an application to amend can be determined. Although it might be possible in some cases to decide that there were no just and equitable grounds without hearing any evidence, it would not be possible in many claims. For instance, in discrimination cases it might be necessary to hear so much evidence that it would not make sense to deal with the matter at all at a preliminary hearing thereby postponing any decision until all the evidence had been heard. 

The EAT concluded therefore that the tribunal judge was wrong to refuse permission to amend without hearing any evidence. The case was remitted so that the tribunal could reconsider the issue as to whether time should be extended on the basis that it was “just and equitable” to do so and whether or not there was a “continuing act”.