Is there a high threshold for employers to make a dismissal reasonable if it is for ‘SOSR’?
No, according to the recent Employment Appeal Tribunal (EAT) case of ‘Ssekisonge -v- Barts Health NHS Trust’. In this case Ms Ssekisonge, the Claimant and a nurse, was working in the UK after being granted indefinite leave to remain and British citizenship. The Claimant’s citizenship, however, was then revoked when the Home Office began to investigate concerns over her identity.
The employer, the Respondent, was an NHS Trust, who was aware of the allegations regarding the Claimant’s identity, and took the decision to rely on ‘some other substantial reason’, as a fair reason to proceed to the Claimant’s dismissal.
You may ask, what is some other substantial reason (SOSR)? It is one of the five potentially fair reasons for dismissal listed under section 98 of the Employment Rights Act 1996. SOSR is an important residual reason which can be relied upon by employers seeking to terminate an employee’s employment in many situations, for example, the end of a fixed term contract, or a loss of confidence in an employee.
The Claimant had been a qualified and registered nurse since 2007, working for a number of NHS Trusts. On 2 January 2007, the Home Office wrote to the Claimant questioning her right to British Citizenship, due to questions arising over the name she had provided when she first entered the UK.
The Claimant commenced working for the Respondent in 2011, during the recruitment process, she was asked to provide her British passport as evidence of her right to work in the UK. She did not tell the Respondent when she was offered employment, or thereafter, that there was any outstanding query in relation to her nationality or the validity of her passport. The Home Office contacted the Claimant again in 2013, the delay here was unexplained, however, the Claimant was advised that information received indicated that she had not disclosed her true identity, and that she was not, and never had been a British Citizen. Therefore, her British Citizenship and naturalisation should be declared null and void, however, her indefinite leave to remain would be unaffected.
In 2014, the Disclosure and Barring service (DBS) ran a check on the Claimant and informed the Respondent that her DBS certificate had been revoked due to her British passport being revoked. The Respondent was told that the Claimant had been informed of this in September 2013 and that there was an ongoing investigation.
The Respondent took the decision to dismiss the Claimant after a disciplinary process, regarding concerns over her identity and her conduct. The Claimant then presented a claim for unfair dismissal at the Employment Tribunal.
Employment Tribunal Hearing
The Employment Tribunal rejected the Claimant’s claim and found that the principal reason for dismissal was that the Respondent could not be certain of the Claimant’s identity, and therefore, that is was fair and for a ‘substantial reason’, in light of the Claimant’s role as a nurse and her correct identity being essential.
The Claimant chose to appeal this decision.
Employment Appeal Tribunal
Whilst sympathy for the Claimant’s position was expressed, the Employment Appeal Tribunal upheld the Employment Tribunal’s decision, finding that the dismissal fell within the band of reasonable responses, and that the dismissal was fair on the grounds of some other substantial reason, as certainty over an employee’s identity was essential for a nursing role.
The Respondent could not continue to employ the Claimant because it could not complete all of the necessary background checks and there were associated risks with this.
The Outcome and guidance to employers …
The Employment Appeal Tribunal rejected the argument that employers should go further than they might otherwise do when dismissing for some other substantial reason, even where there is no fault on the part of the employee.
We consider that the facts in this case are particularly unique, and as the Claimant worked as a Nurse for an NHS Trust, it is likely that absolute certainty about the employee’s identity is more important than it might be for an employee who is employed in a different sector, for example in retail. Employers should however, always be mindful of their duties to check that prospective employees have the right to work in the UK, by obtaining, copying and retaining suitable evidence before employment commences.
Should you wish to discuss any aspects of Employment law, in particular recruitment, and/or dismissal of employees, please contact our specialist employment team on 0161 478 3800 or on [email protected]