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Benefit of the Doubt?

Does an employer have to give an employee the benefit of the doubt before dismissing for ‘some other substantial reason’.

This was recently considered by the Employment Appeal Tribunal (EAT) in a case involving a nurse who was experiencing difficulties with the Home Office in relation to her citizenship. While she had the right to work in the UK, she was being investigated by the Home Office, who believed she had given a false identity. Her employer (an NHS Trust) became aware of the issue and, despite their being no firm evidence supporting either side of the argument, took the decision to dismiss, relying on ‘some other substantial reason’.

Was the dismissal fair or was there a higher threshold for the Trust to overcome?

Ssekisonge v Barts Health NHS Trust

Ms Ssekisonge qualified and was registered as a nurse in 2007, working for a number of NHS Trusts. On 2 January 2007 the Home Office wrote to Ms Ssekisonge questioning her right to British Citizenship, setting out their view that the name she had given on entry into the UK was not her true name. The Home Office informed her that steps would be taken to deprive her of her citizenship and that she should return her naturalisation and passport.

Ms Ssekisonge began working for Bart’s Health NHS Trust in 2011. As part of 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 NHS Trust, when she was offered employment or thereafter, that there was any outstanding investigation in relation to her nationality or the validity of her passport.

The Home Office contacted Ms Ssekisonge again in 2013. It said that the information it had received indicated that she had not disclosed her true identity and that she was not and never had been a British Citizen and therefore her British Citizenship and naturalisation should be declared null and void. Ms Ssekisonge’s indefinite leave to remain would be unaffected but would be subject to review.

In 2014, the Disclosure and Barring service (DBS) ran a routine check on Ms Ssekisonge and informed the Trust that Ms Ssekisonge’s DBS certificate had been revoked due to her British passport being revoked. They also informed the Trust that Ms Ssekisonge had been made aware of this in 2013 and that there was an ongoing investigation.

The Trust suspended Ms Ssekisonge and asked her for documents proving her identity. Ms Ssekisonge provided a copy of her passport, deed poll change of name certificates, a second passport in the name of Ssekisonge and the Home Office letter granting her indefinite leave to remain. The Trust did not consider these documents to be satisfactory and because of the ongoing concerns they suspended Ms Ssekisonge pending further investigation by their Counter Fraud Team. The Home Office informed the Trust’s Counter Fraud Team that it was likely that Ms Ssekisonge has obtained indefinite leave to remain and her British Citizenship under false pretences. It later sent a signed statement to the Trust confirming this.

Following a meeting between The Trust, the Home Office and NHS Business Services Authority and further evidence being provided by Ms Ssekisonge to prove her identity and her indefinite leave to remain status, the Trust were not satisfied that their doubts had been resolved about Ms Ssekisonge’s identity. Ms Ssekisonge was invited to a disciplinary hearing to address the allegation that she was unable to verify her identity and her ability to work legally in the UK. Ms Ssekisonge refuted the Home Office’s assertion that she had used a false identity and that the allegations leading to the issues as to her true identity were motivated by malice and made by her ex-husband. She also relied on the fact that she continued to have indefinite leave to remain, which gave her a right to work in the UK.

The Trust recognised that Ms Ssekisonge’s identity remained in question and that her DBS certificate had been withdrawn; such essential checks could not be carried out whilst her identity remained in question and they could therefore not establish whether she was someone who was suitable to work with patients. The Trust recognised that the matter was subject to judicial review but that they could not await the outcome as it would take too long. Ms Ssekisonge was dismissed with immediate effect in the absence of satisfactory evidence as to proof of her identity and her right to work in the UK.

Ms Ssekisonge brought claims for unfair dismissal.

Employment Tribunal (ET)

The ET rejected Ms Ssekisonge’s claim. The dismissal was fair on the grounds of some other substantial reason of a kind such as to justify dismissal.

Whilst there is no suggestion that Ms Ssekisonge worked without difficulty or criminal conviction since 2000, the Trust remained concerned that until Ms Ssekisonge’s full or true identity were known, required and essential checks could not be carried out fully. The Home Office continued to maintain that Ms Ssekisonge did not use her true identity when claiming asylum on first entering the UK and so there remained doubt that she had obtained indefinite leave to remain status through deception. The Trust’s concerns were substantial and rendered the dismissal reasonable and fair.

The ET did sympathise with Ms Ssekisonge, noting that she was in a “catch 22” situation as she could produce as many documents as her employer required but if the Home Office maintained that she was not Ms Ssekisonge, these documents would never be sufficient to satisfy the Trust.

Ms Ssekisonge appealed.

Employment Appeal Tribunal (EAT)

The EAT upheld the ET’s decision, finding that the dismissal fell within the band of reasonable responses. In light of the Home Office’s position, the dismissal was fair on the grounds of some other substantial reason, as certainty over an employee’s identity is essential for a nursing role.

The Trust could not continue to employ Ms Ssekisonge because it could not complete all necessary background checks and could not therefore eliminate risk in employing a nurse in those circumstances. The EAT also noted that it should not have been expected of the Trust to await the outcome of the Home Office investigation and that an employer should not be expected to investigate further than official information obtained from a responsible public authority.

Comment

The ET and EAT in the above case had sympathy with the Claimant, as she was dismissed for being unable to persuade the Home Office that she hadn’t lied about her true identity.

Nevertheless, the EAT rejected an argument that employers should go further than they might otherwise do when dismissing for some other substantial reason where there is no fault on the part of the employee.

Employers should also 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.

If you have any queries about dismissing employees, the right to work in the UK or any other employment law or HR queries, please contact Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600 or 01524 548494.

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