Galilee v The Commissioner of Police of the Metropolis

Mr L Galilee v The Commissioner of Police of the Metropolis UKEAT/0207/16/RN

Facts

The Appellant, Mr L Galilee, a former police officer, was dismissed from the Metropolitan Police on 5 February 2015. He commenced proceedings at the Employment Tribunal (ET) on 10 March 2015, initially representing himself.

After retaining solicitors, by 31 July 2015, Mr Galilee sought to amend his pleaded case by serving Further and Better Particulars and an extensive list of issues. The proposed amendments asserted claims of direct disability discrimination, discrimination arising from disability, indirect disability discrimination, reasonable adjustments disability discrimination, harassment, and victimisation.

The original ET1 form had ticked "Unfair dismissal" and "Disability" boxes but not "Discrimination". The proposed amendments were considered new causes of action. The amendments were proposed after the three-month time limit for the claims would arguably have expired. Mr Galilee contended he had been the victim of a series of acts extending over a period ("continuing act").

Employment Judge (EJ) Foxwell heard the application to amend on 11 September 2015. He refused the application to amend and also dismissed the unfair dismissal claim on withdrawal. EJ Foxwell's reasoning included that the new claims were an "attempt to recast the claim substantially", that they were out of time, and that he could not confidently find that a "just and equitable" extension of time would be granted due to a lack of evidence from the Claimant. He stated that the "critical issue" was that of time and that allowing the amendment would "deprive the Respondent of its jurisdictional defence". He suggested the Claimant could issue further proceedings to test the time point.

Significantly, EJ Foxwell reached his decision without hearing any evidence. Subsequently, in separate proceedings, EJ Jones struck out the surviving claims of disability-related discrimination and victimisation on grounds of judicial immunity and res judicata.

Held

The Employment Appeal Tribunal (EAT) (His Honour Judge Hand QC) allowed Mr Galilee's appeal. The EAT found that EJ Foxwell's refusal of permission to amend was based on a critical error of law.

No "Relation Back" Doctrine in ET - The EAT explicitly held that the common law doctrine of "relation back" (where an amendment is treated as if it were part of the original claim from its commencement) and section 35(1) of the Limitation Act 1980 do not apply directly to amendments to pleadings in the ET that introduce new claims or causes of action. Instead, such new claims take effect for limitation purposes at the time permission to amend is given.

Conflicting Precedent - The EAT concluded that earlier EAT decisions (Rawson v Doncaster NHS Primary Care Trust, Newsquest (Herald and Times) Ltd v Keeping, and Amey Services Ltd and Another v Aldridge and Others) that relied on the "relation back" doctrine or mandated prior determination of out-of-time issues were wrongly decided on those points and should not be followed [3, 4, 109b, 109e, 118, 119]. It preferred the conclusions in Potter and Others v North Cumbria Acute Hospitals NHS Trust and Prest v Mouchel Business Services Ltd.

Interpretation of Selkent - The guidance from Selkent Bus Co Ltd v Moore regarding the "essential" need to consider whether a new complaint is out of time should not be taken literally or rigidly to create an invariable rule that all out-of-time issues must be decided before permission to amend is considered.

Time Limits and Evidential Hearings - In many cases, particularly discrimination cases involving "continuing acts" or "just and equitable" extensions, it will not be possible to reach a conclusion on time limits without an evidential investigation. Decisions on these matters may need to be postponed until all the evidence has been heard.

Error in EJ Foxwell's Approach - EJ Foxwell erred in refusing permission without hearing evidence, particularly regarding his evaluation of the likelihood of a "just and equitable" extension and his lack of resolution on the "continuing act" issue. His reasoning was fundamentally flawed by the mistaken application of the "relation back" doctrine.

Remittal - The case was remitted to EJ Foxwell for re-consideration of the application for permission to amend in light of the EAT's judgment, and for him to determine how and when the issue of time limits should be addressed. The EAT declined to exercise the discretion itself.

Comment

The Demise of "Relation Back" in the ET - Galilee definitively states that the "relation back" doctrine, which treats an amended claim as if it were part of the original claim from its commencement, does not apply in ET procedure. While it existed at common law and is statutorily "deemed" in civil litigation through section 35(1) of the Limitation Act 1980 and CPR Part 17.4, these provisions are not directly applicable to the ET. The EAT found it "artificial and unreal" to deem a new claim, new in substance, to have been instituted at an earlier date simply because it became "procedurally entwined" with an existing claim.

Reconciling Selkent with Practicalities - The judgment clarifies the often-cited Selkent principle that it is "essential" to consider time limits when dealing with amendments. Galilee explains this does not impose an absolute and mandatory rule that time limit issues must be fully resolved before an amendment is granted. This is particularly relevant in discrimination cases where complex issues like "continuing acts" or "just and equitable" extensions often require extensive evidential investigation that cannot be done at a preliminary stage. Deferring the time limit decision until all evidence on the merits has been heard may sometimes be the most appropriate approach.

Nature of Out-of-Time Claims - The EAT emphasized that a claim brought outside the time limit is not a "nullity ab initio". It remains a valid claim unless and until the ET explicitly decides it is out of time, whether by mathematical calculation or by determining it is not "just and equitable" to extend time. This means that the ET retains jurisdiction over such claims until a definitive decision on time limits is made.

Judicial Discretion and Appellate Review - The judgment reiterates that ETs have a broad discretion in case management, including amendment applications. Appellate courts will only interfere if there is an error of law or the decision is perverse. An error of law can include misdirection, failure to take into account relevant considerations, or taking into account irrelevant ones. The decision must be "plainly wrong" or "outside the generous ambit within which reasonable disagreement is possible". However, the EAT also stresses that this "generous ambit" does not make case management decisions immune from scrutiny if they stem from a legal error.

Importance of Evidential Basis - A key takeaway is that tribunals should be cautious about making definitive rulings on time limits (especially "continuing act" or "just and equitable" extensions) without hearing sufficient evidence.. The EAT suggests that making provisional assessments of the likelihood of success on time points is an "erroneous approach".

Remittal as Standard Disposal - Even when an error of law is found, the EAT's usual course is to remit the matter back to the first-instance tribunal to exercise its discretion correctly, rather than the EAT exercising that discretion itself.