Employment tribunals are not always obligated to determine a time limit point before deciding whether to allow further claims made out of time, the employment appeal tribunal (EAT) has ruled.
Re-opening the question of when claimants can amend existing or previous proceedings to add additional claims when normal time limits have been exhausted, the EAT has remitted back to the East London tribunal an appeal against a decision that a dismissed police officer could not bring further claims for discrimination made out of time.
According to the judgment of the EAT in Galilee v Commissioner of Police for the Metropolis, in December, the judge decided the ‘relation back’ doctrine – when a past action is treated in the present as if it had occurred earlier – did not apply to this case.
Judge John Hand regarded it as appropriate to remit the case on appeal back to the tribunal to “reconsider in the light of this judgment, and to consider how and when the issue of time limits [for claims] should be determined.”
Mr Galilee had been a police officer until his dismissal from the Metropolitan Police on 5 February 2015. He brought claims for unfair dismissal due to disability discrimination regarding events alleged to have occurred leading up to his dismissal, on 10 March 2015, representing himself.
After later retaining solicitors, on legal advice, he sought to amend his claims to add discrimination arising from disability, indirect disability discrimination, reasonable adjustments disability discrimination, harassment and victimisation, which predated the dismissal. He submitted these further complaints of disability out of time.
His application to amend his case and its claims was refused in late 2015, after he settled and withdrew his unfair dismissal claim at the tribunal. The tribunal judge found the claims were out of time. The time limit for submitting many employment tribunal claims is three months, subject to exceptions.
The claimant appealed and the appeal was heard at the EAT on 22 November 2017. In December, Judge Hand decided that the original tribunal judge incorrectly threw out Galilee’s claims after finding them out of time. It is the judge’s discretion to decide if it is fair and reasonable to extend time to allow claimants to amend their claims.
The EAT had to consider whether the employment tribunal was required to decide whether the claims introduced by the amendment were in time or not, whether granting permission to amend without deciding the out-of-time points could deprive the Metropolitan Police of the opportunity to challenge whether the claims were out of time, and whether the tribunal had ever determined whether the proposed additional claims were out of time.
All three propositions, the judge submitted, must be answered in the negative in this case. Judge Hand found that no relevant evidence had been heard from the Metropolitan Police, as it relied on the fact that these claims were out of time, rather than their validity, for its defence.
An amended claim will take effect from the date when permission is granted, not the date of the original claim.
Galilee’s application for permission to appeal will therefore need to be reconsidered by the tribunal, the judge said.
The case serves as a warning to employers defending claims that they may need to err on the side of caution in concluding claims ruled out of time cannot be amended – as in this case, a claim amended to bring further claims apparently made out of time may still be allowed to proceed.
Employees with potential multiple claims may need to bring all claims relevant to their claim as early as possible in the legal process, to comply with time limits, but there may still be an opportunity to argue for further time in certain circumstances even when apparently out of time.