The law says that, in the majority of cases, claimants have to submit their tribunal claim within three months less one day of the date of the act they are complaining about, but what happens if they make a mistake and miss the deadline? In Cohen v Mahmood MP, the Employment Appeal Tribunal held that the issue for tribunals is not whether the mistake was reasonable but whether the claimant’s belief that they had presented their application on time was reasonable, having regard to all the facts.
Basic facts
Ms Cohen worked in the Westminster office of Khalid Mahmood, the Labour MP for Perry Barr in Birmingham from November 2003. The parties had a romantic relationship in the early days of her employment, but after that ended, she continued to work for him until January 2021, when she was dismissed.
She submitted a number of tribunal claims on 22 March, including unfair dismissal and automatically unfair dismissal for having made a protected disclosure. However, in the course of completing the complaint form, known as an ET1, she entered the completely wrong early conciliation certificate number.
At that time there were delays in processing new claims caused by an administrative backlog following the Covid-19 pandemic and associated lockdowns. On 21 June 2021 (so two weeks after the deadline for submitting her claim within the time limit of three months less one day) the tribunal emailed her asking her to confirm the early conciliation number. She did not receive that email, however, nor did she receive a number of other messages until 14 July. She then provided the correct number straight away. Her ET1 was deemed to have been received by the tribunal on 16 July, meaning that it was out of time.
Ms Cohen asked for the time limit to be extended.
Tribunal decision
The tribunal was guided by the EAT decision in Adams v British Telecommunications Plc (ELR 473) which held that the question for tribunals in these circumstances is not whether the original mistake was reasonable but whether the claimant’s belief that they had presented their ET1 on time was reasonable, having regard to all the facts.
Applying that decision to these circumstances, the tribunal found that at the time that Ms Cohen attempted to issue her claim form on 22 March, she had no reason to believe that she had provided the wrong early conciliation number.
As she had not entered the wrong number deliberately and as she had rectified the mistake straight away, it held that this “was a genuine and unintentional mistake”. It concluded therefore that time should be extended in respect of her unfair dismissal claim as it had not been “reasonably practicable” for her to present a claim in time given the misapprehension she was under.
Mr Mahmood appealed, arguing that the tribunal had failed to consider whether the original error was reasonable. He pointed out that the number she provided was not a minor typographical error, but a completely different one. In addition, she had not offered a sensible explanation for her error, despite the fact that she had engaged lawyers.
EAT decision
Dismissing the appeal, the EAT held that the tribunal had asked itself the right questions and had taken account of the relevant facts. Among other things, they had referred to the fact that the number Ms Cohen had provided was completely different to the correct one but had accepted her evidence that it was because she filled in the form on her phone.
It concluded that these kinds of errors are easily made and although in a sense, it is never “reasonable” to make them, that should not be the determinative issue, as the Adams decision showed.