A common battleground in preliminary hearings is the Claimant's application to amend their claim to add a new cause of action that is, on its face, out of time. The Respondent cries foul, pointing to the strict limitation periods, and demands that the amendment be refused or, at the very least, that the time point be resolved immediately.
The tribunal's approach is governed by the Selkent framework, which establishes that time limits are an "essential" factor to consider. But does that mean the Employment Judge must definitively determine whether the new claim is out of time—and whether an extension is justified—at the amendment application stage? Or can the time point be deferred to the final hearing?
The authorities on this question have pulled in opposite directions, creating a procedural uncertainty.
The Strict Approach: Amey Services Ltd
In 2016, the Scottish EAT laid down a strict marker in Amey Services Ltd and anor v Aldridge and ors EATS 0007/16. The EAT held that a tribunal must come to a definitive conclusion on the question of time limits when it determines the amendment application. It cannot, the EAT ruled, simply allow the amendment "subject to time bar" and defer the jurisdictional issue to the substantive hearing.
Under this approach, if a Claimant seeks to amend to add a claim that is ostensibly out of time, they must be prepared to fight (and win) the extension argument (whether "not reasonably practicable" or "just and equitable") at the preliminary hearing.
The Pragmatic Revolution: Galilee and Reuters
Two years later, the EAT sitting in London provided a different interpretation. In Galilee v Commissioner of Police of the Metropolis 2018 ICR 634, EAT, HHJ Hand QC held that there is no doctrine of "relation back" in the Employment Tribunal. A new claim added by way of amendment takes effect for limitation purposes on the date permission is granted, not the date the original ET1 was presented.
Because there is no "relation back", granting an amendment does not automatically deprive a Respondent of a limitation defence. Therefore, HHJ Hand QC concluded, it is not always necessary to determine time points as part of the amendment application.
Constitutionally, the Employment Appeal Tribunal is a single, integrated court for Great Britain. When HHJ Hand QC sitting in London disagreed with the earlier Scottish ruling in Amey, it was not a case of an English appellate court asserting precedence over a Scottish one. Instead, applying the principles of horizontal precedent and judicial comity (established in Secretary of State for Trade and Industry v Cook), HHJ Hand QC concluded that because Amey implicitly relied on the defunct "relation back" doctrine, it was manifestly wrong in law. This narrow exception permitted the EAT to depart from its own prior decision.
This pragmatic approach was refined shortly thereafter in Reuters Ltd v Cole EAT 0258/17. The EAT preferred Galilee over Amey and established the modern threshold: at the amendment stage, a Claimant need only show a prima facie case that the primary time limit is satisfied (for example, by pointing to an arguable continuing act) or that there are grounds for extending time. If that threshold is met, the tribunal can allow the amendment and leave the definitive resolution of the time point to the full tribunal, which will have the benefit of hearing all the evidence.
The Recent Confirmation: Douglas
For practitioners north of the border, the tension between the Scottish EAT's decision in Amey and the English EAT's approach in Galilee has been a persistent headache. However, the recent decision in Douglas v North Lanarkshire Council 2024 EAT 194 has provided clarification.
In Douglas, the Scottish EAT addressed the conflict directly. Lord Fairley expressed an obiter preference for Galilee. The EAT noted that it is often difficult or impossible to resolve a potential issue of time bar until evidence has been led at a full hearing—a problem that is particularly acute where a claimant alleges a series of acts amounting to a continuing course of conduct.
Strategic Takeaways
For Claimants, the weight of authority increasingly favors the Galilee/Reuters/Douglas line of authority. When faced with a time-bar objection at an amendment hearing, the objective is not to win the limitation argument outright, but simply to clear the prima facie hurdle. Emphasise that the tribunal should not conduct a "mini-trial" on time limits without hearing live evidence, particularly where continuing acts or just and equitable extensions are in play.
For Respondents, the position requires more careful navigation. If the facts are undisputed and the Claimant's explanation for delay is non-existent, point out that even under Galilee, a time point that is clear-cut can and should be resolved early to save the costs of defending a doomed claim. But where the facts are messy, the Respondent's best tactical position may be to accept a deferral and focus on limiting the scope of the factual enquiry.
Interactive Amendment Solver
To see how these competing authorities apply in practice, try the interactive amendment decision tree below. It guides you through the Selkent framework, factoring in the latest guidance on time limits and the balance of hardship.
Potted Chronology of Key Authorities
- 1974: Cocking v Sandhurst (Stationers) Ltd and anor 1974 ICR 650, NIRC
Established the foundational "balance of hardship and injustice" test. - 1996: Selkent Bus Co Ltd v Moore 1996 ICR 836, EAT
Mummery P laid down the classic three-stage framework: (1) nature of amendment, (2) applicability of time limits, (3) timing and manner of application. - 2016: Amey Services Ltd and anor v Aldridge and ors EATS 0007/16
Scottish EAT held tribunals must definitively determine time limits at the amendment stage and cannot defer the question to the final hearing. - 2017: Reuters Ltd v Cole EAT 0258/17
EAT held a claimant need only show a prima facie case on time limits at the amendment stage; final determination can be deferred. - 2018: Galilee v Commissioner of Police of the Metropolis 2018 ICR 634, EAT
HHJ Hand QC definitively ruled there is no doctrine of "relation back" in the ET. Expressly disagreed with Amey. - 2024: Douglas v North Lanarkshire Council 2024 EAT 194
Scottish EAT acknowledged the cross-border tension and expressed an obiter preference for Galilee over its own prior decision in Amey.
Half a century of authorities to resolve a question that could be stated in a sentence: must the tribunal decide the time point now, or can it wait? The answer, increasingly, is that it can wait — and that the insistence on deciding it early was built on a doctrine that never existed.