Mrs C Kelly v Durham County Council — 2021

The claimant, an Office Manager at Tow Law Millennium Primary School employed by Durham County Council from 6 June 1994, was dismissed on capability grounds following long-term sickness absence. She accepted that capability, in the sense of long-term absence arising from ill-health, was the reason for dismissal, but argued that the respondent had not acted reasonably in relation to that dismissal.

The tribunal found that the claimant had been absent from 3 June 2019 with acute stress reaction and severe anxiety, that medical certificates continued to say she was not fit for work, and that the Occupational Health reports available to the respondent did not identify a foreseeable return-to-work date. The claimant was unable to attend most absence management meetings, the first committee hearing, or the appeal hearing, although she made written submissions and was represented by trade union representatives at absence management meetings. The tribunal found that the respondent had engaged with her sufficiently in the circumstances, had followed its attendance management procedure, and had reasonable grounds for its belief that she could not return to work.

The claimant said her ill-health had been caused by the respondent's handling of workplace changes, including cash handling arrangements, administrative restructuring, redundancies, and the response to her concerns. Applying McAdie, the tribunal found that while the respondent's decisions and actions had caused the claimant's acute stress and severe anxiety in a strict causative sense, the respondent was not culpable for implementing the changes. It also found that the issues raised by the claimant had been addressed, though not in the way she wanted, and that the respondent had correctly dealt with her attempted grievance under its policies.

The tribunal held that the respondent genuinely believed the claimant's capability justified dismissal, had reasonable grounds for that belief, and had carried out as much investigation as was reasonable, including Occupational Health referrals and repeated attempts to consult. It concluded that the respondent could not reasonably be expected to wait longer, that the decision to dismiss fell within the band of reasonable responses, and that the complaint of unfair dismissal under sections 94 and 98 of the Employment Rights Act 1996 was not well-founded and was dismissed. No remedy was awarded.