In the recent case of Galilee v Commissioner of Police for the Metropolis the EAT held that the doctrine of ‘relation back’, whereby amendments take effect from the date of the original document which it amended, does not apply in the tribunal.
The case concerned a claim for unfair dismissal and disability discrimination. The Claimant later sought to amend the ET1 to include additional accounts of disability discrimination which occurred prior to the dismissal.
In the first instance the tribunal found that these additional accounts had been made out of time and was not persuaded that time should be extended on a ‘just and equitable’ basis. Further, the tribunal was concerned that the Respondent would be deprived of its jurisdictional defence should permission be granted to amend the ET1.
The Claimant appealed the tribunal’s decision and the appeal was allowed by the EAT. The EAT held that the doctrine of ‘relation back’ does not apply in the tribunal and the amended claim takes effect from the date when permission is granted as opposed to the date on which the original claim was brought.
Therefore, granting permission to the Claimant to amend the ET1 does not deprive the Respondent of the right to argue that the additional accounts are made out of time. Further, it is not necessary for a tribunal to determine if a claim is out of time when deciding to grant permission to amend the ET1, other than in clear cases. The tribunal can grant permission to amend subject to the time point being decided at a later stage.
Employers should be aware that employees may be able to amend ET1s to add additional claims even where such claims are made out of time. Tribunals are not required to determine the time point when such applications are made but a timebar argument can be made at a later date.