Abstract

This post summarises the current state of the authorities, and observes what appears to be an inconsistency in the case law: Galilee and Reuters and Szymoniak say that granting an amendment cannot circumvent limitation; Macfarlane and Modality assume that it can (and sometimes does).

Case links appear below.

Law

In Galilee v The Commissioner of Police of the Metropolis UKEAT/0207/16/RN HHJ Hand concluded that it is not always necessary to determine time limit points as part of an amendment application; there is no doctrine of “relation back” in employment tribunal proceedings; and that amendments to pleadings which introduce new claims or causes of action take effect for the purpose of limitation at the time when permission to amend is given.

You might think that the italicised point is surprising, because it means that the limitation date depends on when the amendment application is heard.

The approach in Galilee is now familiar to practitioners. Where a claimant asks to add a discrimination complaint which is prima facie out of time, Tribunals will often “allow the amendment on a Galilee basis”, i.e. permit the amendment but leave the issue of time limits to be determined at a final hearing after hearing the evidence.

Galilee was considered in Reuters Ltd v Cole UKEAT/0258/17/BA in which Soole J said at paragraph 31:

“. . . a potential issue arises from the conflict in EAT authorities as to whether the Tribunal must definitively determine the time point when deciding on the application to amend (Amey Services Ltd & Enterprise Managed Services Ltd v Aldridge & Others UKEATS/0007/16 (12 August 2016)) or whether the applicant need only demonstrate a prima facie case that the primary time limit (alternatively the just and equitable ground) is satisfied (Galilee v The Commissioner of Police of the Metropolis UKEAT/0207/16 (22 November 2017)). In the light of the exhaustive analysis of the authorities undertaken by His Honour Judge Hand QC in Galilee, I would follow the latter approach . . .”

In the same vein, the EAT in Szymoniak v Advanced Supply Chain BFD Ltd EAT-2019-001201-LA (a decision of HHJ Auerbach) held at paragraphs 74 – 75

74. “It is clearly established that the fact that a proposed amendment would, had it been presented as a fresh claim at the same time have been out of time, is not a knock-out blow when the application is one to amend. The tribunal is also not obliged to determine the time point at the same time as determining the amendment application. There is no doctrine of relation back, and sometimes the tribunal can, or indeed should, leave the time point to be resolved at the full hearing: see Galilee and Reuters v Cole UKEAT/0258/17/BA.

75. However, a time point of this sort is a factor that can be properly weighed in the balance when deciding whether to allow the application to amend. In this case, the time point had been identified for consideration at this PH and indeed witness evidence was directed in relation to it. As the EAT has observed several times, that may be a hazardous, and sometimes the wrong, course to take, if in the given case time points cannot properly fairly be determined at a PH. A case where it is argued that complaints that would otherwise be out of time, are in time because they form part of a continuing act together with later complaints, is the most common example.”

So far, so good. But how does this line up with other decisions?

In Vaughan v Modality Partnership UKEAT/0147/20/BA (perhaps the lead case on amendments), HHJ Tayler observed at paragraph 24.2 that:

24.2 An amendment may result in the respondent suffering prejudice because they have to face a cause of action that would have been dismissed as out of time had it been brought as a new claim.

Similarly, in MacFarlane v Commissioner of Police of the Metropolis [2023] EAT 111 Michael Ford KC, sitting as a Deputy Judge of the High Court, held at paragraph 45

45 . . . Statutory time limits are a relevant, but not decisive, factor because an amendment application should not too easily become a means of circumventing the limitation periods which Parliament has laid down for tribunal claims. The weight to be given to that consideration equally depends upon the extent to which the new claim is in substance the same as, similar to, or wholly different from the originally pleaded claim: see Abercrombie per Underhill LJ at §50.

But if the amendment takes effect for limitation purposes at the date permission to amend is given – which Galilee says it does – and if tribunals are not obliged to determine the time point at the same time as determining amendment – see Szymoniak as well as Galilee – then granting the amendment does not deprive the respondent of a limitation defence; nor does granting the amendment have the effect of circumventing limitation periods. Rather, it is the substantive decision on whether to extend time which is relevant; and the decision on amendment does not entail the decision on time limits.

It is worth giving a bit of thought to the distinction. A couple of examples may help.

In New Star Asset Management v Evershed [2010] EWCA Civ 870 (and in the EAT at [2009] UKEAT/0249/09/3107) an application to add an (out of time) s 103A (automatically unfair dismissal by reason of whistleblowing) claim to an existing “ordinary” unfair dismissal claim was allowed; the time limit issue was a relevant factor, but not a decisive factor – with the emphasis being on substance (whether the amendment requires “very substantial new areas of legal and factual inquiry”) rather than form (whether the amendment is technically adding a new claim).

Similarly, in Arian v The Spitalfields Practice [2022] EAT 67 HHJ Auerbach considered an application to amend to add a s 103A claim to an existing s 98 complaint; considered that the addition of an allegation of contravention s 103A was the introduction of a new complaint for the purposes of time limits (at paragraph 60); held (at paragraph 82) that the timing point “strictly does come into play”, but that the overall balance of prejudice was nonetheless in favour of allowing the amendment.

The puzzle about the decision in Arian is that – given Galilee – granting the amendment does not dispose of the time limit issue.

Note also that in Reuters the EAT considered the addition of a s 13 complaint to an existing s 15 claim and said at paragraph 28

“. . . I consider that the section 13 claim does involve a greater area of factual enquiry and thus takes it outside the relabelling category . . .” (emphasis added)

The point here is that even claims which are closely connected to facts already pleaded – a factor counting in favour of granting the amendment – may still be “new” claims for limitation purposes (as with the addition of a s 103A claim to an existing s 98 claim, per Arian).

And then at paragraph 30 Soole J said:

“. . . the Judge should have considered the exercise of her discretion, having regard to all the relevant factors. These include the degree of difference in the factual enquiry and the fact that the new claim has been made outside the primary three-month time limit . . . as part of the exercise of discretion, it is necessary to consider the just and equitable ground for the extension of time . . .”

Soole J also considered (para 31) that the effect of Galilee was that the applicant need only demonstrate a prima facie case that the primary time limit (alternatively the just and equitable ground) is satisfied.

I have omitted Amey Services Ltd and anor v Aldridge and ors EATS/0007/16 from this discussion. Amey was a decision in which the EAT in Scotland held that the tribunal must come to a definitive conclusion on the issue of time limits when it determines the amendment application. I have omitted Amey on the basis that it is clearly at odds with what is becoming a fairly well-established line of authorities south of the border – see also Reuters which considered both Amey and Galilee and chose to follow the latter.

Lastly, note Douglas v North Lanarkshire Council [2024] EAT 194 in which the EAT held at 42 – 43:

42. Neither Amey nor Galilee applies in a situation where the issue of time bar has clearly been overlooked at the stage when the amendment was considered and allowed. That situation can arise where – as here – there was a material lack of clarity in the claimant’s pleaded case. Were it necessary to resolve the apparent tension between Amey and Galilee, however, the approach taken in Galilee respectfully seems to me better to reflect the reality of written pleading in the Employment Tribunals. As was noted in in Galilee, and as this case illustrates, it will often be difficult or impossible to resolve a potential issue of time bar until evidence has been led at the full hearing, even where extensive efforts have been made during case management to bring clarity to the claimant’s pleaded case. That problem can be particularly acute where what is relied upon alleged is a series of acts or omissions by the employer which are said to amount to a course of conduct.

43. Where possible, a tribunal considering an application to amend should usually examine the issue of time bar as one of the Selkent factors. Where the issue of time bar is unclear, however, it is competent for it to be reserved (Galilee). Where, as here, an issue of time bar has obviously been overlooked at the stage of consideration of the amendment application due to a lack of clarity in the claimant’s pleaded case, it remains a live jurisdictional point which any subsequent tribunal considering the evidence has an ongoing duty to address, whether or not it has been raised by the respondent.

Conclusions

The effect of these authorities seems as follows:

  1. The applicability of time limits is a factor in deciding whether to grant an application, but it is not decisive: MacFarlane; New Star Asset Management
  2. The decision on time limits can be postponed: Galilee
  3. The applicant still needs to show a prima facie case on time limits: Reuters
  4. If the issue of time bar has been overlooked, it remains a live jurisdictional point: Douglas
  5. There is clearly scope for granting amendments to add claims which are subject to the “reasonably practicable” test (unfair dismissal; automatically unfair dismissal; whistleblowing detriment; etc), and which are prima facie out of time
  6. Granting those amendments does not deprive the respondent of a limitation argument: Galilee

This has some practical consequences:

  1. To determine the time limit issue (whether on “just and equitable” grounds, or whether because an analysis of “a series of similar acts” is required, or whether because there is a dispute over whether it was reasonably practicable to have presented the claim in time) will almost certainly require evidence.
  2. If a respondent is faced with an application to amend to add a claim which falls under the “reasonably practicable” time limit provisions, the respondent should press for a public preliminary hearing at which the time limit issue can be determined. The risk otherwise is that the respondent will be forced to defend on the merits a claim to which it may well have a perfectly good time limit defence (but where prudence dictates a defence on the merits as well as a defence on jurisdictional grounds).
  3. That provides a further argument for respondents to resist such applications: “if you grant this application, but don’t determine the time limit issue, then the respondent will be prejudiced as a result, because I’ll have to produce a substantive defence to a claim which is likely to fail on jurisdictional grounds.”
  4. Respondents will also want to scrutinise amendment applications closely; the aim is to argue that the amendment seeks to introduce something which involve “a greater area of factual enquiry” and thus amount to more than a mere re-labelling – and therefore require that the time limit issue be determined.
  5. Remember that there is a difference between whether the amendment would result in substantial new areas of factual and legal inquiry (which is something New Star Asset Management says should be looked at when considering whether to permit an amendment) and whether the amendment is “technically adding a new claim”.
  6. The “prejudice” factor identified in Vaughan v Modality at 24.2 (“[a]n amendment may result in the respondent suffering prejudice because they have to face a cause of action that would have been dismissed as out of time had it been brought as a new claim . . .”) should be closely scrutinised: claimants can argue that there is no prejudice here, because the grant of the amendment does not deprive the respondent of the jurisdictional defence (applying Galilee).
  7. It is essential that claimants making applications to add claims which are prima facie out of time take care to:
    1. Adduce evidence which establishes a prima facie case that the claims are in time (i.e. either within the normal three-month period, or that it was not reasonably practicable to have presented the claim in time and the claim was presented in such further period as is reasonable; or that the claim relates to a continuing act; etc.)
    2. Consider whether the amendment seeks to add a “new” claim (such that the issue of time limits will need to be considered)
    3. Decide at what point they wish the issue of time limits to be determined. Clearly, in discrimination cases it will generally be appropriate for the issue of time limits to be determined at the final hearing (having heard all of the evidence). Claims subject to the “reasonably practicable” test are different: if the amendment is granted, there may still be a serious jurisdictional hurdle to overcome. That will impact on both parties; it may constitute leverage for a commercial settlement for an unrepresented claimant, or it may constitute an undesirable and avoidable increase in cost (both money and time).

The author would be more than happy to discuss these issues directly, and can be contacted through the clerks in Chambers.

Ezra Macdonald