Amendment out of time issue may require evidence

The Employment Appeal Tribunal (EAT) has made an important ruling to the effect that employment tribunals (ETs) should not normally exclude late applications to amend or add additional claims, particularly in respect of alleged discrimination, without hearing evidence.

In Galilee v Commissioner of Police of the Metropolis [2017] UKEAT 0207_16_2211 (22 November 2017), the claimant alleged disability discrimination in respect of his dismissal. After consulting solicitors, an application to amend his claim was made. The ET refused the application, ruling that the new claims were out of time; that the employment judge could not be confident that the claimant would persuade a tribunal to extend the time limit on a just and equitable basis; and that allowing the amendment would deprive the respondent of its opportunity to argue that the claims were out of time.

Galilee’s appeal raised four questions:

• Was the ET required to decide whether the claims introduced by the amendment were in or out of time when considering the application to amend?
• Does granting permission to amend without deciding the time limit issue deprive the respondent of the opportunity to challenge whether the claims are out of time?
• In Galilee’s case, had the ET actually considered whether the proposed additional claims were out of time?
• Had the ET erred in law by refusing permission to amend for the reasons it did?

In a lengthy judgment, HHJ Hand QC held the ET erred in concluding that it was essential to reach a decision on the “out of time” point at the preliminary stage.

The EAT said that while in some cases it may be possible to determine on the written pleadings that there can be no continuing act or an extension of time on just and equitable grounds, that may not be so, particularly in discrimination cases. It emphasised that it may not be possible to determine time limit issues until evidence has been heard.