Dismissal over concern regarding the real identity of a nurse found to be fair03/05/17
In the recent case of Ssekisonge v Barts Health NHS Trust, Capsticks acted for the Trust in successfully defending a claim for unfair dismissal. The claimant, a Rwandan national, was dismissed after doubts were raised regarding her real identity.
The claimant, Mrs Ssekisonge, entered the UK in 2010 and was given indefinite leave to remain, but under a different name. She was later granted British citizenship and on remarriage changed her name to Elizabeth Ssekisonge. Prior to her joining the Trust as a nurse in 2011, the Home Office questioned Mrs Ssekisonge’s right to be in the UK and alleged that she was in fact an entirely different individual. However, the Home Office failed to follow this matter up for a further six years.
When Mrs Ssekisonge accepted employment at the Trust she presented her passport as evidence of her right to work and failed to mention the Home Office’s concerns about her identity. In 2013 when the Home Office contacted her once more to state that her naturalisation was null and void and that her right to remain in the UK would be reviewed in light of her conduct, Mrs Ssekisonge
did not inform the Trust of this issue.
The Trust first became aware of the Home Office’s concerns when Mrs Ssekisonge’s DBS certificate was revoked because her identity could not be verified. As the DBS certificate is a requirement to work as a nurse, Mrs Ssekisonge was suspended while the Trust investigated the position. Although the Home Office had stated that she had leave to remain in the UK and the right to work (albeit under review), it maintained its position that she was using a false identity. The Trust dismissed Mrs Ssekisonge with immediate effect in the absence of satisfactory evidence as to her proof of identity.
A claim for unfair dismissal followed but was dismissed by the Employment Tribunal (‘ET’). The Trust relied on some other substantial reason (SOSR) as the fair reason for dismissal. The ET found that the issues about identity, which the Home Office maintained, taken with the DBS revocation given her role as a nurse were substantial concerns rendering dismissal for SOSR within the range of reasonable responses.
The Employment Appeal Tribunal Decision
The EAT dismissed Mrs Ssekisonge’s appeal. One of the grounds of appeal had been that a SOSR dismissal, where the individual is not at fault in any way (Mrs Ssekisonge’s case was that the Home Office investigation was the result of false allegations made by her ex-husband), requires a more careful evaluation than might otherwise apply. The EAT did not agree and found that it was open to the Trust to decide that it could no longer continue to employ Mrs Ssekisonge. Given that the Home Office are considered experts in this area, the Trust did not need to go further than the enquiries it had made.
Dismissal where there are concerns about immigration status
Many employers will have had to deal with the scenario where concerns are raised over an employee’s right to work in the UK. A fair dismissal procedure requires that an employer carries out an investigation into the right to work, and if such as right cannot be established, dismissal for either breach of a statutory enactment or some other substantial reason (SOSR) are two options open to the employer.
Breach of a statutory enactment can be very hard to make out and will only be found to be a fair reason for dismissal where there is in fact a breach of a statutory enactment; a genuine belief, albeit mistaken, is not sufficient. We generally advise therefore to rely on SOSR where there are right to work concerns. The benefit of SOSR is that if it transpires that the concerns are misplaced, this does not necessarily render the dismissal unfair. Provided the belief is genuinely held, and this will be dependent on a fair investigation having been carried out, the dismissal may still be fair.
There has been previous case law where an employer has relied on information from a responsible public authority about the immigration status of a worker and dismissed on this basis, only to discover that the information was incorrect. Whilst a SOSR dismissal in these circumstances may be fair, where the reason relied upon is breach of a statutory enactment, the dismissal
would be unfair.
Victoria Watson, Partner, and Victoria Moss, a Senior Lawyer at Capsticks, assisted the Trust with the ET and EAT proceedings. The Trust was also represented at both the ET and EAT by Hollie Patterson, an advocate at Capsticks. Capsticks is ranked as the number one healthcare firm in both Legal 500 and Chambers legal directories and is therefore uniquely placed to provide expert advice on defending claims in the ET and EAT.
For further information on how this issue might affect your organisation, please contact Victoria Watson, Victoria Moss or Hollie Patterson