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Martina Murphy successful in Cohen v Mahmood MP (EAT)

Martina Murphy successful in Cohen v Mahmood MP (EAT)

The Employment Appeal Tribunal (‘EAT’) has handed down judgment in Ms Elaina Cohen v Mr Khalid Mahmood MP in which the successful claimant was represented by Martina Murphy.

The Claimant had been successful before the Employment Tribunal in her claim for unfair dismissal and one complaint of whistleblowing detriment. The claimant had made an error in the citation of the ACAS number on the ET1 and missed the primary time limit. The Tribunal held it was not reasonably practicable for the Claimant to have presented her claim in time.

Mr Mahmood MP appealed against the decision extending time.

Employment Appeal Tribunal

Mr Mahmood MP’s appeal

In dismissing Mr Mahmood MP’s appeal, the EAT confirmed that the real issue in such a case is not whether the original mistake was reasonable but whether the mistaken belief that a form had been correctly presented and it was therefore unnecessary to do anything more, was reasonable having regarding to all facts and circumstances. The nature of the original mistake is relevant to this assessment but not determinative.

More significantly, the EAT considered a line of EAT authorities, including Sterling and Adams.  The EAT held that that part of the Sterling decision dealing with the ‘not reasonably practicable’ test was not necessary as part of that decision and has effectively been impliedly overturned by the subsequent decision in Adams.

As a result of the EAT decision in Cohen and the Court of Appeal’s decision in Sainsbury’s Supermarkets v Clark and Others which dealt with the interpretation of r10 of the ET Rules, Sterling has been completely overruled. (The successful claimants in Sainsbury’s v Clark having been represented by Andrew Short KC and Saul Margo).

Cohen’s appeal

The claimant succeeded on both her grounds of appeal; the EAT remitting a complaint of protected detriment disclosure and a s103A whistleblowing dismissal complaint back to the Tribunal for reconsideration.

Martina was instructed by Anthony Robinson of McHale & Co.

The Judgment

Read the full judgment here: Cohen v Mahmood MP [2023] EAT 144.

Find out more

Martina Murphy specialises in complex employment litigationprofessional discipline and group litigation. She is particularly interested in the interaction between these specialisms and the fields of sport and healthcare.

Martina regularly appears unled in the appellate courts including the EAT and the Court of Appeal. Martina has a broad employment, commercial and equality law practice including the areas of whistleblowing and discrimination. She is regularly instructed in complex trials in the Employment Tribunal with weighty documentary and oral evidence.

To find out more about Martina, contact Nicholas Levett on +44 (0)20 7427 4908.

News 27 Nov, 2023


Martina Murphy

Call: 1998

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