Galilee v Comr of Police of the Metropolis

An Employment Tribunal amendment that introduces a new claim takes effect for limitation purposes when permission to amend is granted. It does not relate back to the commencement of the original proceedings. The former common-law doctrine of relation back is defunct and the statutory deeming rule in section 35(1) of the Limitation Act 1980 does not apply by analogy in tribunal proceedings.

An amendment may therefore be allowed before final determination of a time-bar issue. The Selkent guidance requires careful consideration of limitation, but does not impose an inflexible rule requiring every time issue to be finally determined at the amendment hearing. Where a continuing act or a just-and-equitable extension may require evidence, the issue may properly be postponed.

The claimant, a former police officer, brought proceedings following his dismissal. He later sought to amend his claim to add several disability-discrimination, harassment and victimisation claims. Employment Judge Foxwell refused permission, principally because the new claims appeared to be out of time and allowing them was thought to deprive the respondent of a limitation defence.

The claimant appealed against that refusal. The central issues were whether an amendment introducing a new claim relates back to the original ET1, whether time-bar questions had to be decided when permission to amend was considered, and whether the Judge had lawfully dealt with a possible continuing act and a just-and-equitable extension of time.

1. Appeal allowed. The refusal of permission to amend was vitiated by an error of law and was remitted to Employment Judge Foxwell for reconsideration.

2. There is no common-law doctrine of relation back in Employment Tribunal procedure. A new claim introduced by amendment takes effect, for limitation purposes, when permission to amend is given. Section 35(1) of the Limitation Act 1980 creates a statutory deeming rule for civil proceedings, but neither that provision nor CPR Part 17.4 applies directly or by necessary implication to tribunal amendments.

3. The Tribunal therefore declined to follow Rawson, Newsquest and Amey Services insofar as their reasoning treated relation back as requiring all time-bar issues to be determined before or with the amendment application. That approach was inconsistent with Potter and Prest.

4. Selkent remains applicable: limitation is an important factor in the discretionary balance on amendment. Its reference to considering whether a new claim is out of time does not create an invariable procedural rule. The Tribunal may allow an amendment before determining limitation, or defer the amendment decision, where that is the fair and sensible course.

5. In discrimination cases, a proposed continuing act may require an evidential investigation. The approach in City of Edinburgh Council v Kaur also applies by analogy to the just-and-equitable extension: save in clear cases, the issue should ordinarily be determined finally after evidence, rather than by assessing the likelihood that a future tribunal might extend time.

6. Employment Judge Foxwell had treated relation back as decisive. He had also failed properly to address whether the pleaded allegations disclosed a sufficiently arguable continuing act and had adopted an impermissible probability assessment of a just-and-equitable extension without evidence. Those errors lay at the heart of the discretionary decision.

• Employment Appeal Tribunal: Appeal allowed. The refusal of permission to amend was set aside and the application was remitted to Employment Judge Foxwell for reconsideration.
• Employment Tribunal, East London Hearing Centre: Employment Judge Foxwell refused permission to amend and dismissed the unfair-dismissal claim following withdrawal. The decision was sent to the parties on 30 September 2015.
• Subsequent Employment Tribunal proceedings: Employment Judge Jones struck out the surviving disability-related discrimination and victimisation claims on jurisdictional and reasonable-prospects grounds. The EAT left the implications of that later decision for the remitted amendment application to the Tribunal.