Under the provisions of the Employment Rights Act 1996, there are 5 potentially fair reasons why an employer may dismiss an employee. The main ones are: the conduct of the employee, the capability of the employee (which may be their competence in doing the job, or their inability to perform their role due to ill-health) and redundancy. There is also a rarely used reason that to continue the employee’s employment in their role would mean that the employer is in breach of some statutory enactment, for example someone who is not eligible to work in the UK. Finally, there is a “catch all” provision of ‘some other substantial reason justifying dismissal’ (SOSR). This can cover any situations which do not fall into the specific categories listed above. For example, SOSR could cover a breakdown in the relationship between colleagues, or a major customer insisting that the employer removes a particular employee.
In the recent case of Ssekisonge v Barts Health NHS Trust  the Employment Appeal Tribunal (EAT) had to consider the question of whether, where there was a “no fault” (on the part of the employee) dismissal which the employer said was for a SOSR reason, was there a particularly high threshold required in order to make the dismissal fair? In all dismissals where the employee qualifies for unfair dismissal (i.e. where the employee has at least 103 weeks’ service with the employer), the employer has to show that it acted reasonably in treating its reason as being sufficient to justify dismissal. In this case it was argued that for no fault SOSR dismissals, the employer had to go further.
The facts of the case were as follows. Mrs Ssekisonge was a nurse who came to the UK from abroad and was given indefinite leave to remain in October 2000. In her application she stated that her date of birth was 19 July 1960 and that she had Rwandan nationality. The granting of indefinite leave to remain gave Mrs Ssekisonge the right to work in the UK, and she was granted British citizenship in April 2006. In January 2007 the Home Office wrote to her questioning her right to British citizenship and suggesting that her real name was Noel Kintu, that she was born in December 1964, and was of Ugandan nationality. The Home Office told her that steps would be taken to remove her of her UK citizenship, and Mrs Ssekisonge responded disputing the Home Office claims. In 2007 she qualified as a nurse in the UK and was employed by various NHS trusts before starting with Barts Health HNS Trust in 2011. She provided them with her British passport as evidence of her right to work in the UK, but did not tell them that there was any outstanding query relating to her nationality.
For reasons which are not clear (but which may be familiar to those who have had dealings with some Government departments!), the Home Office did not contact Mrs Ssekisonge again until September 2013. At that time they told her that her citizenship was null and void and that her status therefore reverted to having indefinite leave to remain. Mrs Ssekisonge did not inform her employer of this. In April 2014, the employer was notified by an external agency that her identity had not been verified, and that therefore her DBS certificate (which was required for her to work as a nurse) was revoked. The Trust therefore suspended Mrs Ssekisonge and asked her to prove her identity. She produced her passport, and not surprisingly the Trust did not consider this to be satisfactory, given that there were ongoing concerns about its validity! The Trust subsequently dismissed Mrs Ssekisonge on the grounds that it could not continue to employ her because of the doubts about her identity and the lack of a DBS certificate.
Mrs Ssekisonge brought a claim in the Employment Tribunal for unfair dismissal. The Tribunal rejected her claim, finding that the dismissal was for a SOSR reason and that, particularly where the employee worked with vulnerable people, the employer had to have certainty as to the identity of their employees. Mrs Ssekisonge appealed the Tribunal decision. The EAT agreed. They dismissed Mrs Ssekisonge’s argument that in a case such as this, where there was no proven wrongdoing by her, the employer had a higher threshold to reach in order for the dismissal to be fair.
As always with these cases, the outcome will be very fact specific. However, the ruling by the EAT does make it clear that if the employer does have grounds for dismissal and has followed a fair procedure, the dismissal can be fair, even when it does not fall into the main potentially fair categories.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).