Is the employment tribunal required, when deciding whether to give permission to amend a claim to add a new claim which may be out of time, to decide the ‘time point’?
Not necessarily, according to the EAT in Galilee v Commissioner of Police for the Metropolis.
The Claimant lodged a claim for unfair dismissal and disability discrimination. He later applied to amend, to include further complaints of disability discrimination which predated the dismissal. The tribunal approached the application on the basis that the earlier acts were out of time. The tribunal could not be confident that the Claimant would persuade a future tribunal that time should be extended on a ‘just and equitable’ basis and, if permission were granted, the effect of it would be to deprive the Respondent of its jurisdictional defence. The Claimant appealed.
The EAT allowed the appeal. In a comprehensive review of the authorities, it held that the doctrine of ‘relation back’ does not apply in the tribunal. An amended claim takes effect from the date when permission is granted, not the date of the original claim. Therefore, granting permission to amend does not deprive the employer of the right to argue that the claim is out of time. Further, it is not necessary to decide if the claim is out of time when deciding whether to grant permission to amend, save in clear cases. Permission to amend can be granted subject to the time point being decided at a later stage or the decision whether to grant permission can be deferred to the full hearing.
Thanks to Anna Roffey, pupil barrister at Old Square Chambers, for summarising this case.