Elaina Cohen v Khalid Mahmood MP

Where an employment claim contains an incorrect ACAS early-conciliation number, the reasonable-practicability inquiry is not whether making the original error was reasonable. It is whether the claimant’s resulting belief that the claim had been validly presented, and that no corrective step was needed, was reasonable in all the circumstances. The character of the original error is relevant to that inquiry but is not determinative.

An Employment Tribunal acts perversely if it later rejects the existence of a threat which is inconsistent with an earlier express factual finding. The affected detriment finding, and any related finding on the reason for dismissal, should be reconsidered.

The claimant was employed by the respondent MP until her dismissal in January 2021. She brought claims for unfair dismissal, whistleblowing detriment, discrimination and harassment. The Central London Employment Tribunal upheld her ordinary unfair-dismissal claim and part of her whistleblowing detriment claim, while rejecting the remaining claims.

Her ET1 included an entirely incorrect ACAS early-conciliation number. After the primary limitation period, she promptly supplied the correct number when she became aware of the error. The Tribunal extended time because it had not been reasonably practicable to present a compliant claim in time.

The respondent appealed that extension. The claimant cross-appealed the rejection of an alleged detriment consisting of a threat of dismissal, contending that it contradicted an earlier factual finding accepted by the Tribunal.

1. The respondent’s appeal was dismissed. Applying Adams v British Telecommunications Plc [2017] ICR 382, the relevant question was whether the claimant’s mistaken belief that her claim had been validly presented, and so required no correction, was reasonable in all the circumstances. It was not the separate question whether her initial insertion of the wrong ACAS number was reasonable.

   The nature and seriousness of the original error remained relevant because it could bear on the claimant’s fault and on the reasonableness of her failure to identify it. It was not, however, conclusive. The Tribunal had identified that the number was wholly different from the correct number, found the error genuine and unintentional, and found that the claimant remained unaware of it until 14 July 2021. It asked the correct question, considered the material circumstances, and its extension of time was not perverse.

2. The claimant’s cross-appeal was allowed in part. The Tribunal had expressly accepted her account that, during the telephone conversation of 26 January 2020, the respondent said he would sack her because of what she was telling him. Its later conclusion that it could not find a threat of dismissal was irreconcilable with that finding and was perverse.

   The case was remitted to the same Tribunal to reconsider whether the threat was a detriment on the ground of one or more protected disclosures. It was also to reconsider whether that earlier factual finding affected its conclusion on the reason or principal reason for dismissal. The Appeal Tribunal expressed the provisional view that a different conclusion on dismissal was unlikely, given the time lapse and the Tribunal’s firm earlier finding, but held that the issue required reconsideration.

• Employment Appeal Tribunal: The respondent’s appeal from the Central London Employment Tribunal was dismissed. The claimant’s cross-appeal was allowed in part and the specified whistleblowing issues were remitted to the same Tribunal.
• Central London Employment Tribunal: Judgment sent on 2 August 2022. The Tribunal upheld the ordinary unfair-dismissal claim and part of the whistleblowing detriment claim, rejected the remaining claims, and extended time for the relevant claims.