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Do "Some Other Substantial Reason" Dismissals Require A Higher Standard Of Fairness?

on Friday, 21 April 2017.

This question was recently considered by the Employment Appeal Tribunal ("EAT") in Ssekisonge v Barts Health NHS Trust.

The Facts

Mrs Ssekisonge worked as a nurse for Barts Health NHS Trust (the Trust). She had originally come to the UK under an application in the name of Faridah Mukabarisa, and was given indefinite leave to remain by the Home Office in October 2000. She subsequently changed her forename to Elizabeth and when she remarried, became Elizabeth Ssekisonge.

In 2007, the Home Office wrote to her citing concerns that she was in actual fact Mrs Noel Kalemba Kintu and informing her that steps would be taken to deprive her of her citizenship. Mrs Ssekisonge did not inform the Trust that there was any outstanding query in relation to the validity of her passport when she was appointed to her role.

The Home Office revoked Mrs Ssekisonge's citizenship in 2013, however she retained indefinite leave to remain in the UK. She did not inform the Trust that her citizenship had been revoked. Then, in 2014, the Disclosure & Barring Service (DBS) notified the Trust that Mrs Ssekisonge's DBS certificate had been revoked as it was "unreliable/inaccurate". The Trust conducted an investigation and subsequently dismissed Mrs Ssekisonge.

Decision

The Employment Tribunal (ET) concluded that Mrs Ssekisonge had been dismissed on two grounds: firstly, due to concern as to her true identity, and secondly, due to her failure to disclose the revocation of her citizenship and passport in 2013. The ET concluded that the principal reason for her dismissal was not gross misconduct, but some other substantial reason (SOSR) of a kind such as to justify dismissal.

The ET held that the Trust's reliance on the information provided by its Counter Fraud team, who had investigated this matter in consultation with the Home Office, was reasonable. It considered that the Counter Fraud investigation had been detailed and involved consideration of Mrs Ssekisonge's evidence, as well as seeking further confirmation from the Home Office as required.

In light of the fact that the Home Office had continued to maintain that Mrs Ssekisonge was Ms Kintu and not Mrs Mukabarisa when she arrived in the UK, this was sufficient to raise doubt as to her true identity and suggest that she may have obtained indefinite leave to remain through deception. The ET considered that this, taken with the revocation of the DBS certificate, brought dismissal in the circumstances within the band of reasonable responses.

In upholding this decision, the EAT rejected Mrs Ssekisonge's argument that, because the SOSR category can encompass dismissals where the employee is not at fault in any way, the notion of fairness applicable in these cases required a more careful evaluation and broader consideration of justice than might otherwise apply.

Best Practice

This case confirms that a SOSR dismissal will not be subject to a higher threshold of fairness. However the question of the fairness of a dismissal will turn on the facts of a particular case.

In reaching its decision, the ET in this case had been entitled to take account of Mrs Ssekisonge's role as a nurse, which required the Trust to be able to fully verify her identity as an individual in that capacity.

In its judgment, the EAT referred to previous case law that an employer in these circumstances cannot be expected to carry out its own investigation in order to test the reliability of the information provided by a responsible public authority. However, it acknowledged that the position as to fairness might well have been different had the Respondent been an office or retail employer and the claimant's role had not been that of a nurse.

For more information, please contact Eleanor Boyd in our Employment Law team on 0207 665 0940.