Galilee v Comr of Police of the Metropolis

The common-law doctrine of "relation back" does not apply to amendments in Employment Tribunal procedure. Instead, amendments take effect for limitation purposes when permission to amend is granted. Tribunals therefore need not as a rule decide limitation points before allowing an amendment. Rather, the tribunal must exercise its discretion, taking into account whether the new claim is out of time, whether there is a continuing act or a just and equitable case to extend time, and whether evidence is needed to decide those issues.

The appellant was a former police officer who sought permission to amend ET pleadings to add discrimination claims. The ET refused permission and dismissed the unfair dismissal claim on withdrawal. The respondent later applied successfully to strike out some original claims on grounds including judicial immunity. The principal legal question on appeal was whether the common-law doctrine of "relation back" applies in Employment Tribunal procedure and, if it does, whether a tribunal must decide limitation points before granting permission to amend. The EAT considered the line of EAT authority, the Inner House opinion in Kaur, and other authorities, and determined the appropriate approach to amendment, limitation and when evidential inquiry is required.

1. Disposition: The appeal is allowed on a point of law and the case is remitted to the Employment Tribunal for reconsideration of the application for permission to amend in light of this judgment.

2. Relation back: There is no surviving common-law doctrine of "relation back" applicable to Employment Tribunal procedure; amendments take effect for limitation purposes at the time permission to amend is given. Consequently earlier EAT decisions that rested on a doctrine of relation back (for example Rawson, Newsquest and Amey Services) are wrong on that point and will not be followed by this Tribunal on that issue (see paras a–e of conclusions).

3. Selkent and the role of limitation: The guidance in Selkent Bus Co Ltd v Moore that tribunals should consider whether proposed new complaints are out of time remains relevant. But the term "essential" should not be read as mandating a rigid rule that limitation must always be determined before considering amendment. The correct approach is discretionary and fact-sensitive.

4. Continuing act and just and equitable: Where a claimant relies on a continuing act or seeks an extension on just and equitable grounds it may be necessary to hear evidence before deciding limitation. The Inner House opinion in City of Edinburgh Council v Kaur is to be applied by analogy; tribunals may need an evidential investigation in many discrimination cases.

5. Case-management error: EJ Foxwell erred in law by treating the effect of amendment as depriving the respondent of a limitation defence by reference to relation back and by refusing permission without adequate consideration of whether the pleadings raised a prima facie continuing act or whether evidence was required to decide a just and equitable extension. That error was material to the refusal to amend.

6. Remedy and practical guidance: The appropriate remedy is remission to the Employment Tribunal to re‑consider the amendment application in light of this judgment. The ET should determine, in the exercise of its case‑management discretion, whether limitation issues can be decided from the pleadings or require a specific evidential hearing, and then proceed accordingly.

7. Order: Remitted to the Employment Tribunal (to EJ Foxwell) to reconsider the application for permission to amend in light of this judgment.

• Employment Appeal Tribunal — appeal from a decision of an Employment Judge refusing permission to amend and dismissing claims on withdrawal. Judgment allows appeal and remits to the ET to reconsider permission to amend.
• Employment Tribunal (East London) — initial preliminary hearing (EJ Pritchard), later application before EJ Foxwell refused on 11 September 2015; subsequent hearing by EJ Jones struck out surviving claims on 2 October 2015 (judgments relied upon in factual background).