The recent Employment Appeal Tribunal (EAT) decision in Ssekisonge v Barts Health NHS Trust gives a helpful reminder of the sorts of situation where dismissal for ‘some other substantial reason’ (SOSR) might be appropriate and the approach that a Tribunal will take in assessing the fairness of the dismissal.
Mrs Ssekisonge came to the UK and was given indefinite leave to remain by the Home Office in October 2000. In January 2007 the Home Office questioned her true identity and her right to British citizenship.
In 2011 Mrs Ssekisonge started working with the Trust as a nurse. At the time she made no mention that the Home Office had raised an issue regarding her nationality and validity of her passport.
In April 2014 the Disclosure and Barring Service (DBS) informed the Trust that Mrs Ssekisonge’s DBS Certificate had been revoked. The Trust undertook an investigation but relied heavily on the Home Office view that Mrs Ssekisonge was practising and employed under a false identity. Mrs Ssekisonge provided her own information to the Trust as to her identity as part of that investigation including information regarding on-going judicial review proceedings she was pursuing in respect of her status.
Ultimately the Trust’s investigation accepted the Home Office concerns regarding the Mrs Ssekisonge’s identity and right to work.
The Trust held a disciplinary hearing and decided to dismiss Mrs Ssekisonge on the basis of SOSR that Mrs Ssekisonge’s identity remained in question and caused serious concern regarding her right to work. The Trust acknowledged that there were on-going judicial review proceedings but felt it could not await the outcome of those proceedings.
By the time of Mrs Ssekisonge’s appeal against her dismissal, her DBS Certificate had been reinstated. Notwithstanding this, the Trust upheld the dismissal on the basis of concerns regarding Mrs Ssekisonge’s identity.
Mrs Ssekisonge pursued a claim to the Employment Tribunal but the Tribunal concluded that the dismissal was for SOSR and that it was fair.
Mrs Ssekisonge appealed against the Employment Tribunal’s decision on the basis that:
- Where dismissal is for SOSR, as opposed to conduct, the Tribunal should undertake a more careful evaluation and broader consideration of the interests of justice than in the case of a conduct dismissal.
- Where the dismissal is for SOSR, the Tribunal is required to carry out an evaluation of the balance of prejudice, i.e. evaluate the harm that would be caused to the employer by continuing to employ the employee, against the harm caused to the employee by dismissing her. In particular, Mrs Ssekisonge alleged that by the time of the appeal her DBS had been reinstated and that the Trust should have allowed her to continue working on the basis that if her right to work was subsequently revoked, she could be dismissed then. She also pointed out that the decision to dismiss her represented the loss of her livelihood.
- The Trust’s own investigation into Mrs Ssekisonge’s identity and immigration status was inadequate and the Trust had relied too heavily on the Home Office’s view.
The EAT rejected the appeal. It accepted that the decision came within the band of reasonable responses. It upheld the Tribunal’s decision that the Trust’s investigation and dismissal processes had been fair. In particular it regarded the Trust’s evaluation of the respective prejudice that would be suffered by either the Trust or Mrs Ssekisonge as satisfactory and it was satisfied that the Trust had undertaken adequate enquiries of its own in relation to the issues.
Key points for employers
The main lessons to be drawn from the case are:
- SOSR remains an option for an employer as a reason for dismissal where there is no fault on the part of the employee.
- Where an employer does rely on SOSR it does not impose any additional burdens on the employer in terms of justifying the dismissal.
- The test remains whether the employer’s decision to dismiss falls within the band of reasonable responses.
- As part of its evaluation the employer should weigh up the balance of prejudice to the employee (were the employer to dismiss) against the prejudice to the employer (were the employment to continue).