Mrs C Kelly v Durham County Council: 2501729/2020
| Jurisdiction | England & Wales |
| Judgment Date | 14 February 2021 |
| Citation | 2501729/2020 |
| Published date | 26 March 2021 |
| Court | Employment Tribunal |
| Subject Matter | Unfair Dismissal |
Case Number: 2501729/2020 (V)
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THE EMPLOYMENT TRIBUNALS
Claimant: Mrs C Kelly
Respondent: Durham County Council
Heard at: Newcastle Hearing Centre (by CVP) On: 3 and 4 February 2021
Before: Employment Judge Morris (sitting alone)
Representation:
Claimant: Mrs J Archer, the claimant’s sister
Respondent: Mr A Webster of Counsel
RESERVED JUDGMENT ON LIABILITY
The judgment of the Employment Tribunal is that the claimant’s complaint that her
dismissal by the respondent was unfair, being contrary to sections 94 and 98 of the
Employment Rights Act 1996, is not well-founded and is dismissed.
REASONS
Procedural matters
1. I consider it appropriate first to record that the conduct of this Hearing was
fraught. In light of the medical evidence before the Tribunal (for example the
letter from the claimant’s GP dated 6 July 2020 (446)) there can be little doubt
that the claimant is seriously unwell.
2. I made allowances and adjustments to accommodate that as did, I am pleased to
record, Mr Webster in his conduct of the case on behalf of the respondent. At the
outset I encouraged the claimant to say if ever she needed a break and asked
her that question from time to time during the Hearing. I am pleased that the
claimant did request breaks as did Mrs Archer on her behalf and the Tribunal
adjourned as often and for as long as was requested.
3. During the course of cross examination towards the end of the second day of the
Hearing the claimant’s requests for breaks became more frequent. When we
Case Number: 2501729/2020 (V)
2
reconvened after one such break at 3.45 Mrs Archer explained that the claimant
was becoming tremendously stressed. She did not want to adjourn to another
day but she was finding it difficult to answer questions as well as she had done
earlier, which was a cause of concern. She asked me if I had any suggestions. I
answered that there were really only two options: first, we could take a longer
break during which the claimant could hopefully compose herself or we could
adjourn the Hearing but that would involve inevitable delay. I commented that
they need not be discrete alternatives as we could, first, take a longer break after
which, secondly, the claimant could decide whether or not she wished to proceed
or adjourn. That proposal was adopted.
4. When we reconvened after about 15 minutes Mrs Archer informed me that the
claimant would like to proceed and thanked me for being very considerate. In the
circumstances, Mr Webster then said that he would not pursue any further
questions with the claimant which, therefore, only left limited re-examination by
Mrs Archer with which the claimant said she would be comfortable.
Representation and evidence
5. The claimant was represented by Mrs J Archer, her sister, who called the
claimant to give evidence. Evidence in support of the claimant was given by two
former employees of the respondent, Mrs F Chesters and Mrs D Appleby, who
had worked with the claimant at Tow Law Millennium Primary School (“the
School”) but they were not called to give evidence as Mr Webster accepted,
without challenge, the content of the witness statements that each of them had
produced.
6. The respondent was represented by Mr A Webster, of Counsel, who called four
witnesses to give evidence on behalf of the respondent: namely, the
Headteacher of the School, Mrs L Jackson, and three of its governors, Mrs L
Croft, Mr R Manchester and Mr J Hart.
7. The evidence in chief of or on behalf of the parties was given by way of written
witness statements, which had been exchanged between them. I also had
before me a bundle of agreed documents comprising some 546 pages. The
numbers shown in parenthesis in these Reasons refer to page numbers or the
first page number of a large document in that bundle.
The claimant’s complaints
8. The claimant’s complaint was that her dismissal by the respondent was unfair,
being contrary to Section 94 of the Employment Rights Act 1996 (“the 1996 Act”)
in that (at the risk of over-simplification) while she accepted that the reason for
her dismissal was capability, the respondent had not acted reasonably in relation
to her dismissal.
The issues
9. As the respondent accepted that it had dismissed the claimant, the issues in this
case are as follows:
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