Previously, an amendment to a claim took effect from the date of the original claim. It was therefore essential for the ET to consider any jurisdictional points (such as whether the claim was 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.
This rule is now different.
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. It may be the case that a tribunal may need to hear all the evidence before deciding whether a particular complaint or cause of action is out of time. Preliminary hearings are helpful, although 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 Galilee v Commissioner of Police of the Metropolis involved a police officer, Mr Galilee, who following his dismissal, brought a claim for unfair dismissal and discrimination against the Met police.
Having instructed solicitors, he applied to amend his claim in order to include further discrimination claims. The tribunal rejected his application on the basis that (amongst other things) 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. It did not find that the Respondent lost its ability to argue that the claim was out of time as this issue could be decided at the full hearing.
This is an important judgment as it clarifies a number of conflicting judgments which have been handed down by tribunals in times gone by.
The Presidential Guidance also offers further guidance for practitioners when considering amendments to claims.