Case law article explores extension of time for lodging employment claims and assessment of whistleblowing detriment claims in Elaina Cohen v Khalid Mahmood MP decision

Citation: [2023] EAT 144
Judgment on

Introduction

In the Employment Appeal Tribunal case of Elaina Cohen v Khalid Mahmood MP, presided by His Honour Judge Shanks, critical legal issues were addressed concerning the extension of time for lodging employment claims and the assessment of whistleblowing detriment claims. The judgment provides a nuanced examination of what factors contribute to the ease or complexity of employment tribunal claim submissions and the significance of correctly presenting such claims within specified timeframes.

Key Facts

Elaina Cohen (the claimant) was dismissed by Khalid Mahmood MP (the respondent) and brought forth multiple claims, including unfair dismissal. A significant point of contention arose from Cohen submitting the incorrect ACAS Early Conciliation Certificate (ECC) number on her ET1 claim form. Despite rectifying the error promptly upon being alerted post the expiration of the primary limitation period, the claim was deemed presented only when the correct information was supplied.

Two appeals were made against the Central London Employment Tribunal’s judgment: the respondent appealed against the decision to extend the time for lodging the claim, while the claimant appealed a specific finding related to whistleblowing detriment. The latter disputed the Tribunal’s position that she had not been threatened with dismissal, contrasting with a factually accepted conversation indicating otherwise.

The Tribunal primarily applied two legal principles in the assessment of the case:

  1. Extension of Time for Lodging Claims: Following the precedent in Adams v BT [2017] ICR 382, the Tribunal considered whether it was reasonably practicable for the claimant to present the complaint before the expiry of the primary limitation period. The key inquiry was not the reasonableness of the original form-filling error but whether the claimant’s mistaken belief that the form submission was correct was reasonable. The Tribunal took into account the nature of the original mistake, including the distinct discrepancy in the ACAS number, the claimant’s history with Tribunal processes, and the absence of an immediately clear explanation for the mistake.

  2. Assessment of Whistleblowing Detriment: The Tribunal initially found no evidence of detrimental treatment, stating that the claimant did not clearly articulate a threat of dismissal. However, earlier findings recognized an instance where the respondent indicated dismissal threats during a phone conversation about whistleblowing disclosures. This contradiction led to an appeal on the analysis of the detriment claim and ultimately the cause of dismissal.

Outcomes

In addressing Mahmood’s appeal regarding the extension of time, Judge Shanks detailed that the Tribunal set the right standard in its deliberation, aligning with Adams v BT. In dismissing the respondent’s appeal, it was affirmed that the essential question presided over by the Tribunal was appropriately applied and that the decision to extend time was not perverse.

Contrasting this, Cohen’s appeal was allowed concerning the whistleblowing detriment finding. Judge Shanks identified a discrepancy in the Tribunal’s judgment, which had failed to reconcile an earlier fact-find of a threat with the later statement of no clear evidence of this threat. Consequently, the case was remitted for further consideration of the specific detriment and the dismissal’s reasoning in conjunction with the whistleblowing claims.

Conclusion

The case highlights the importance of careful claim form submissions within employment law and establishes that while unintentional mistakes occur, the primary consideration is the claimant’s reasonable belief about the accuracy of their submission. Additionally, it reinforces the necessity for Employment Tribes to maintain consistency in their findings, especially when considering the sequence of events and their subsequent impact on employment claims. The judicious application of the Adams precedent delineates the criteria for justly extending claims beyond the usual statutory limits, stressing on a holistic view of circumstances surrounding late submissions.

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