08 December 2017 #Employment
Prior to the case of Galilee v Commissioner of Police of the Metropolis, it was understood that an amendment to a claim takes effect from the date of the original claim and that it’s essential for the Tribunal to consider any jurisdictional points (such as whether the claim is in time) when deciding whether or not to grant the application as, once the application has been granted, the Respondent would be prevented from raising such an argument.
However, in the above case, the EAT ruled that the task of deciding whether to grant an application to amend (which may include a new complaint or cause of action) is not a single-stage exercise. Often, as in the above case, a tribunal may need to hear all the evidence before deciding whether a particular complaint or cause of action is out of time. It may not be possible to achieve this at a preliminary hearing and the issue may have to be dealt with at the full hearing.
The facts of the above case involved a police officer, Mr Galilee, who following his dismissal, brought a claim for unfair dismissal and discrimination against the Met police. Having consulted solicitors, he applied to amend his claim to include further discrimination claims. The tribunal refused his application on the basis that, amongst other points, the new claims were out of time.
Mr Galilee appealed this decision and the EAT ruled in his favour. The EAT held that when granting permission for a party to amend a claim, the amendment takes effect for the purposes of limitation at the time permission is granted to amend the claim, rather than dating back to the date the original claim was lodged and a number of cases had been wrongly decided on this point. The Respondent also did not lose its ability to argue that the claim was out of time and this issue could be decided at the full hearing.
The EAT remitted the case to the tribunal in order to re-consider Mr Galilee’s application for permission to amend.
This is an important judgment as it clarifies a number of knotty issues which have been handled incorrectly in the tribunals for some time. However, there is conflicting EAT authority (albeit in Scotland) on the above points and in order to achieve complete clarity in this area, an appeal to the Court of Appeal will be necessary.