CROYDON IN CRISIS: A landmark judgement, handed down today, determined that the council did not act in a racist, prejudicial or harrassing manner towards one of its former senior staff members. By STEVEN DOWNES
This was one battle that David lost to Goliath.
Cleared: the Employment Tribunal dismissed the case brought against council CEO Katherine Kerswell
Today, at the end of the three-week tribunal hearing, an employment judge dismissed all claims of sex and racial discrimination, harassment, victimisation and constructive and unfair dismissal that had been brought against Croydon Council by one of its former executive directors.
Delivering a unanimous verdict, Employment Judge Adam Leith spent three hours going through case law, the evidence and the often complicated chronology of the case brought by Hazel Simmonds, Croydon’s former executive director of Gateway, strategy and engagement.
Only occasionally pausing to take a sip from a glass of water as he dealt with each separate allegation and sub-allegation, Judge Leith repeatedly delivered the legal phrase, “The allegation is not made out on the facts and does not succeed.”
In doing so, the Tribunal – made up of Judge Leith and two lay members – also dismissed claims of racial and sexual discrimination that were laid at Katherine Kerswell, Croydon Council’s £192,474 per year chief executive.
In her evidence, Kerswell refuted each and every one of the accusations levelled against her and the council, saying, “I found the racism allegations and those of victimisation, harassment and undermining Hazel deeply hurtful and personally offensive.
“I have been a chief executive for long enough to know that you have to deal with personalised and painful attacks in the public domain. I understand that and take that as part of the job that I have chosen to do.
“Nevertheless, I am a human being as well. My health has significantly suffered over this period,” Kerswell claimed.
Not compelling: Dean Shoesmith, Croydon’s head of HR
Simmonds had earlier this year won part of her case, that having her salary reduced while on sick leave was unlawful. But this latest Tribunal did not accept that the council’s conduct in this matter was in any way discriminatory or represented harassment – mainly because the council treats all its employees just as badly.
The judge did say that they had found the evidence given by Croydon’s head of HR, Dean Shoesmith, over the council’s apology to Simmonds for the way she had been abused and humiliated by the former council chief, Jo Negrini, at a staff awards event as “not compelling”.
The Tribunal said that they could see how the apology had been seen to be “insincere”. Today, Judge Leith described the council’s apology to Simmonds as “weak”.
It was very significant that in her summing up made to the court on Tuesday, Simmonds accused Kerswell of lying under oath about a meeting they had had at Fisher’s Folly in which she reported a complaint made by a black staff member, of racist behaviour by another member of the “ELT”, the executive leadership team.
“Oh, for goodness sake,” Kerswell was supposed to have said in response.
When cross-examined last week, Kerswell claimed she had no recollection of any such meeting. “Are you saying I made it up?” Simmonds asked her.
“Yes,” Kerswell told the court.
In her evidence, Simmonds had also told of another meeting she had attended when there had been a separate complaint about the council’s stance on equality policy, at which Chris Buss, the interim finance director during 2021, had shrugged and joked, “What’s the point?”, something which Simmonds said that he and Kerswell laughed about.
‘Shut down’: Guy van Dichele’s evidence backed up Simmonds
Yet on Tuesday, neither Judge Leith nor his panel members chose to challenge Simmonds when she made her claim that the council CEO had lied to the court about the “for goodness sake” meeting.
In his ruling today, Judge Leith said, “The panel finds that the meeting did take place.”
But he added that they had found it “implausible” that Simmonds had not followed up on this complaint, and that the Tribunal “do not conclude that Ms Kerswell was close-minded”.
The Tribunal also considered evidence of another incident, an ELT meeting in which Simmonds and one of her witnesses, Guy van Dichele, a former colleague, had said that Kerswell had “shut down” the exec when she had raised the issue of an exodus of black social worker staff from the council, describing the council as “a sinking ship”.
Kerswell felt such a description of the failing council with debts of £1.6billion and (at that stage) just the pair of Section 114 notices was not sufficiently “positive”.
The Judge said that they had found that this was probably all a matter of the language used, rather than a reaction because of Simmonds’ race.
The Tribunal was critical of aspects in which Simmonds had conducted her case, in that the employment law specialist solicitor who had represented her in the early part of her lengthy grievance and disciplinary procedure had been particularly feisty in his correspondence with council officials.
Brief: Patricia Leonard headed up the council’s legal team
“Temperatures were raised by intemperate correspondence,” the Judge said. It was “wholly unreasonable” for Simmonds’ solicitor to claim payment of his fees from the council for attending meetings.
The three-week hearing proved to be an object lesson in how public authorities, armed with hundreds of thousands of pounds of public cash and represented by a battalion of professional lawyers and senior staff, can drag out a case for three years to grind into the dust anyone that might dare to challenge their actions and decisions.
Simmonds was forced, because of mounting costs, to represent herself at the Tribunal hearing, something which saw her occasionally reduced to tears. A bout of tonsilitis in the second week also made conducting the case more difficult for her, as she waded through the massive volumes of documents and correspondence that the council’s lawyers had presented.
The council attended most days of the Tribunal hearing with a team that included a senior barrister and her pupil and a solicitor and trainee, plus at least one senior member of the council’s own legal staff. Generally there would be between five and seven six-figure salaried council executives also logged in to the remote hearing, plus a couple of curious councillors for good measure.
The council attendees usually included Katherine Kerswell, although she was a notable absentee today.
The council’s grievance procedure is only supposed to take 12 weeks. For Simmonds’s initial complaints, it took Croydon a year and three months to deal with one grievance and more than a year to deal with a second. In that time, Simmonds had spent some months on sick leave, the strain of dealing with her case causing her significant mental health issues.
While the Judge today said that the council’s HR department had behaved in an “unnecessarily bureaucratic way” in its dealings with Simmonds, needlessly issuing different forms it wanted filled in, Judge Leith said that the overall delays in the disciplinary proceedings were not found to be “unjustified”.
Hard task: Hazel Simmonds
Simmonds was among five Croydon Council execs abruptly suspended from duty in February 2021 by Kerswell, soon after she had received the Penn Report from an outside expert from the Local Government Association.
It was part of Simmonds’ case, supported in evidence from van Dichele, that Kerswell commissioned the Penn Report and drafted its terms of reference to provide an excuse to raise disciplinary action against existing senior staff to force their departures.
The council made its case that Simmonds, apparently above all others, was responsible for the council’s financial collapse. In early 2021, Kerswell had drawn up a set of nine complaints over Simmonds’ conduct, arising from the Penn Report, even though Simmonds was not among those who Richard Penn individually recommended should be subject to disciplinary action.
The Tribunal heard how the copy of the Penn Report that the council lawyers originally provided to Simmonds had had Penn’s recommendations removed.
An investigator from the Local Government Association, appointed as a consequence of Kerswell’s complaints, found gross misconduct on several points and recommended Simmonds’ dismissal. But in September 2022, Simmonds resigned from the council.
Today, Judge Leith and his colleagues found that the council’s disciplinary process “was not to determine a scapegoat”, the Judge adding, “Crucially, we cannot say what the outcome of a disciplinary process would have been because the claimant resigned.”
The Judge ruled, “The complaints fail and are dismissed.”
Dismissed complaints: Employment Judge Adam Leith
This evening, following the gruelling experience of running her own case for three weeks, after three years of dealing with Croydon Council bureaucracy, Simmonds told Inside Croydon, “I am of course disappointed at the outcome. But I can move on with my life and start on the road to recovery in relation to my mental and physical health.
“It was David v Goliath. I took on a huge organisation on my own.
“I have learnt so much from the process. I cannot believe the support I have had from Croydon staff and some residents.”
Inside Croydon approached Katherine Kerswell for a comment on the conduct of the case. She failed to respond.
But this evening a Croydon spokesperson maintained that “the council was right to defend the claims”.
Welcoming the outcome, Croydon Council said that they “remain committed to holding those who held leadership roles at the time of Croydon’s financial collapse to account”.
Which, in the main, is something they have singularly failed to do after more than three years.
- Tomorrow: How Croydon Council’s lawyers tried to gag Inside Croydon’s reporting of a hearing in open court – and lost
Read more: CEO Kerswell could face crucial cross-examination at Tribunal
Read more: After two years, Simmonds legal case approaches its end-game
Read more: #PennReport wanted police probe into possible misconduct
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I know I’m not supposed to say this, but I don’t really blame this hapless ‘Exec’ for throwing racism into the mix – she’ll never be able to find anyone to employ her after this omnishambles, so I cannot begrudge an attempt to get a few extra quid.
Who cares what the Tribunal Judge has said. Can we now just get rid of Kerswell – she has spent well over 18months preparing herself for this case at the expense of doing her job and Croydon Council Tax payers’ money.
When Croydon went bust, the Government had to put someone in as a temporary CEO – they put Kerswell in. Kerswell was meant to stay until a permanent CEO was recruited. However, Kerswell had other ideas. Cushy Croydon she thought – good place to hang out until I retire or get a golden handshake until I retire.
She therefore applied for the permanent job herself. This is like a fireman coming to put out a chip pan fire and ends up moving into the house.
The problem for Croydon residents is that Kerswell is fucking useless.
She is slow, she is a terrible organiser (see Croydon elections), she has no ideas, she never speaks in public, she fiddles and manipulates in the background, she does not have the respect of Croydon staff nor, currently, the Government, she feels she is too high and nightly to return communications to residents – she is good for nothing and Croydon Borough is lumbered with her whilst she sees out slow time to her retirement.
What a fucking ridiculous situation – why does this great Borough always end up with the dregs? Kerswell is a gravy train administrator who does not give a flying fuck about Croydon. She doesn’t live in the Borough. Her husband has a similar gravy train role at another London borough.
Why do we have to put up with this under-performing nobody? There needs to be a campaign to kick her ass out of Croydon in 2024.
This borough deserves SO much better.