Ssekisonge v Barts Health NHS Trust
‘Some other substantial reason’ (SOSR) is often seen as the fall-back option where no other potentially fair reason to dismiss – conduct or capability, perhaps – applies. But it is not the easy option. It still needs to be reasonable to dismiss the particular employee for the reason you are giving.
Ms Ssekisonge was a nurse employed by the Trust. She was dismissed following serious concerns about her identity and about her right to work in the UK. Her DBS certificate, which she needed in order to practise as a nurse, had been revoked. The Home Office’s view was that she was likely to have obtained her indefinite leave to remain in the UK, and her British Citizenship, under false pretences.
The employment tribunal found that dismissal was fair for SOSR. However, one of the grounds for appeal was that the tribunal had not considered what threshold of fairness is appropriate in a SOSR case. Does a SOSR scenario require a more careful evaluation than might otherwise apply, given that it covers situations in which an employee is not at fault?
No, said the Employment Appeal Tribunal. The Trust could not be satisfied about Ms Ssekisonge’s identity, and that was a risk for the organisation. Once the Home Office had made it clear that it still had concerns about Ms Ssekisonge’s identity, the Trust was entitled to conclude that its own doubts about her identity and the risk posed in the absence of full background DBS checks were sufficient to justify dismissal.
The EAT held there was nothing wrong with the tribunal’s decision. Dismissal was justified here, although it might have been different had the employer not been a NHS Trust, and the employee not been a nurse.