If an employer can show they dismissed their employee for “some other substantial reason”, it will be fair. In Ssekisonge v Barts Health NHS Trust, the Employment Appeal Tribunal (EAT) upheld the tribunal’s decision that the dismissal of a nurse whose identity was being investigated by the Home Office could be fair for “some other substantial reason”, even though conduct played a part in the reason to dismiss.
Basic facts
After being given indefinite leave to remain by the Home Office in October 2000, Ms Ssekisonge was granted British Citizenship in April 2006. In January 2007, the Home Office wrote to her accusing her of falsifying her true identity on entry to the UK; and indicating that steps would be taken to deprive her of her citizenship. However, it did not contact her again until 2013 when it revoked her citizenship.
In the meantime Ms Ssekisonge qualified as a nurse in 2007 and started working for Barts in March 2011. She did not tell the Trust about the outstanding query in relation to her true identity, nationality or the validity of her passport. In April 2014 the Disclosure & Barring Service (DBS), informed the Trust that her DBS certificate had been revoked. She was suspended by the Trust pending an investigation, which was heavily influenced by the Home Office assertion that Ms Ssekisonge was not who she said she was.
Although she still had indefinite leave to remain and the right to work, the Trust dismissed Ms Ssekisonge in October 2014 on the basis that she had failed to provide satisfactory evidence as to proof of her identity. Although her DBS certificate had been reinstated by the time of the appeal hearing and the Trust was aware that she had initiated judicial review proceedings against the Home Office, it upheld the dismissal because she had not been open about the revocation of her citizenship, leading to a lack of trust between them. She claimed unfair dismissal.
Tribunal decision
The tribunal concluded that the principal reason for dismissal was not gross misconduct but some other substantial reason (SOSR) which justified her dismissal. The concern about failure to disclose was a reason relating to conduct but this was only a lesser part of the reason to dismiss.
Although the tribunal had considerable sympathy for Ms Ssekisonge in that she could not convince the Trust that she had the right to work in the UK no matter how many documents she produced, equally it was unrealistic to expect the Trust to wait until the conclusion of her judicial review proceedings. The dismissal was therefore fair.
EAT decision
Although the EAT was also very sympathetic to Ms Ssekisonge’s situation, it held that the tribunal was entitled to conclude that the decision to dismiss fell within the band of reasonable responses and that SOSR was the appropriate label. Whilst conduct formed part of the reason for dismissal i.e. the failure to disclose the query at the point of recruitment, the principal concern of the Trust was its inability to be sure that Ms Ssekisonge was who she said she was. As the dispute relating to her true identity was not a matter capable of amounting to conduct, the employer could potentially dismiss Ms Ssekisonge fairly for SOSR subject to it satisfying the necessary test.
In assessing the fairness of the Trust’s decision, the tribunal found that it had carried out a detailed investigation in consultation with the Home Office, which involved consideration of the evidence submitted by Ms Ssekisonge as to her identity. And although the tribunal was concerned about the “catch 22” situation in which Ms Ssekisonge found herself, it had to take into account the nature of the work carried out by the Trust; her role as a nurse; and the importance of being able to verify her identity as an individual in that capacity.
Until her true identity was known, full background checks and identity checks could not be properly conducted with all the risks that entailed for an NHS Trust charged with responsibility for the care of its patients including vulnerable patients and patients potentially at risk. As such, the tribunal was right to find that the dismissal was fair.