It appears that the threshold for dismissing an employee for a “substantial reason” is relatively low, following the judgement of the EAT in Ssekisonge v Barts Health NHS where the employer was found to have fairly dismissed an employee because they could not confirm their identity.
Facts of the Case
The Claimant in this case was a nurse at the Respondent hospital. She was a Rwandan national who had gained British citizenship and indefinite leave to remain in the UK. However, the Home Office were informed that this was not her identity and she was in fact another person from Uganda. They contacted her to express concerns about her true identity and that they were going to take steps to revoke her citizenship. Her employer, the Respondent, was naturally concerned when they found out about the Home Office’s actions, began disciplinary proceedings and asked the Claimant to prove her identity.
The documents the Claimant provided consisted of her passport and the Home Office’s letter granting her leave to remain. The Respondent consulted with the Home Office and determined that the documents were obtained under “false pretences”. This was supported by the Home Office writing to the Respondent confirming that they believed the Claimant to be a Ugandan national and not the Rwandan individual she claimed to be.
The Respondent dismissed the Claimant relying on “some other substantial reason” (SOSR), namely that it could not be sure of her identity. The Claimant brought a claim for unfair dismissal which was dismissed. She appealed to the EAT.
In upholding the Tribunal’s decision the EAT confirmed that the burden of proof for employers relying on SOSR is the same as the other defences to unfair dismissal. It also rejected the claimant's argument that an SOSR dismissal when an employee is not at fault should have a higher threshold for reasonableness than for standard potentially fair reasons (conduct or redundancy for example).
What does this mean for you or your business?
Employers should be careful when exercising the SOSR justification for a dismissal. However it seems that tribunals are willing to find that a dismissal for SOSR is fair in certain circumstances.
It should be noted that the facts of this case are quite exceptional for an SOSR dismissal. The Respondent was able to justify their decision as they could not be expected to investigate more than the Home Office. The EAT also noted that had the Claimant not been employed as a nurse, their decision may have been different. It acknowledged that the Respondent’s need to know her identity was greater because of this. Would the EAT have decided this case differently if the Claimant was not working in a DBS required environment? Perhaps.
What do you need to be doing now?
Employers should continue to act reasonably throughout disciplinary proceedings and exercise caution when dismissing employees, especially when relying on the SOSR justification.
Nb. On 1 April 2017 the limit of a compensatory award for unfair dismissal rose to £80,541.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.