Articles - Galilee v Commissioner of Police for the Metropolis

Employment & Discrimination - Betsan Criddle

Galilee v Commissioner of Police for the Metropolis UKEAT/0207/16/RN

Is the ET 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 judgment of the EAT in Galilee v Commissioner of Police for the Metropolis

Acting in person, Mr Galilee submitted a claim of disability discrimination regarding his dismissal from office.  After instructing solicitors, an application to amend was made to add complaints of disability discrimination relating to events which were alleged to have occurred in the period leading up to his dismissal from office.

The ET refused the application.  The judge determined that the new claims were out of time; that he could not be confident that the Claimant would persuade an ET to extend time on a just and equitable basis and that giving permission to amend would deprive the Respondent of its jurisdictional defence i.e the opportunity to argue that the claims were out of time.

The Claimant appealed.  He identified four issues to be addressed by the EAT:

  • At the time of considering the application to amend, was the ET required to decide whether the claims introduced by the amendment were in or out of time?
  • Does the granting of permission to amend without deciding the out of time points have the effect of depriving the Respondent the opportunity subsequently to challenge whether the claims are out of time?
  • In this case, had the ET ever determined whether the proposed additional claims were out of time?
  • Subject to the answer to those questions, had there been an error of law by the ET in refusing the permission to amend for the reasons it did?

 

The second question raised the issue of whether the ‘relation back’ theory applies to amendments in the ET.  That is the doctrine that a claim added by amendment takes effect from the date of the original claim and so the effect of granting permission to amend is to allow the Claimant to pursue a claim which is regarded as being in time.

In a careful and lengthy judgment, HHJ Hand QC held that the relation back theory does not apply in the ET.  Amendments to pleadings which introduce new claims or causes of action take effect for the purposes of limitation at the time permission is given to amend.

The judge in this regard held that he would not follow the EAT’s previous decisions in Rawson v Doncaster NHS Primary Care Trust UKEAT/0022/08, Newsquest (Herald & Times) Ltd v Keeping UKEATS/0051/09 and the very recent case of Amey Services Ltd & Anr v Aldridge & Ors [2017] UKEATS/0007/16).  The judgments of the EAT in Potter & Ors v North Cumbria Acute Hospitals NHS Trust & Ors (No. 2) [2009] IRLR 900 and Prest v Mouchel Business Services Ltd [2011] ICR 1345  would be preferred.

Further, and of considerable practical signficance, HHJ Hand QC went on to find that the ET erred in concluding that it was essential to reach a decision on the ‘out of time’ point at the preliminary stage. Indeed, “it should never have been attempted”. Whilst in some cases it may be possible to determine on the pleadings that there can be no continuing act or an extension on just and equitable grounds, that may not be so, particularly in discrimination cases.  It may not be possible to determine time points before or at the same time as an application to amend until evidence has been heard - and in some cases, significant evidence. Permission to amend can therefore precede jurisdiction decisions, and in some cases the permission to amend decision can itself be postponed.

Of interest, the EAT also deprecated what it regarded as the tendency to regard case management decisions as being in a special category and immune from scrutiny.  If there is an error of law, they are decisions which can be overturned just as any other.

This is an important judgment on amendment and brings some welcome clarity to this area.  It grapples directly with what might be regarded as a previous tension in the law: on the one hand that a decision should not be made as to whether separate acts of discrimination are a continuing act until hearing all the evidence at a substantive hearing and on the other that time points should be decided at a preliminary stage.  It makes it more likely that in a case where there is a significant issue about whether a new claim is part of a continuing act either that permission will be given subject to the time point being decided at a full hearing or that the question of permission will be deferred to a full hearing.  Parties will therefore have to prepare to deal with the claim on the basis that it may or may not be decided substantively at the end of the day.

Betsan Criddle of Old Square Chambers represented the successful Appellant instructed by Pattinson & Brewer.

Note by Anna Roffey, pupil at Old Square Chambers.

For full EAT judgment, please click here.

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