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Employment Law Case Update: Ssekisonge v Barts Health NHS Trust

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In the case of Ssekisonge v Barts Health NHS Trust, the claimant was a nurse who had obtained indefinite leave to remain in the UK by the Home Office on 27 October 2000, and British citizenship on 23 April 2006.

In 2007, there was a Home Office investigation into her identity as there were suspicions that she obtained her indefinite leave to remain and her citizenship under false pretences.  The claimant disputed the allegations and began working as a nurse for the respondent in 2011. When the claimant applied for the position she did not mention that there was an outstanding query in relation to her nationality or validity of her passport.  The Home Office contacted the claimant again in 2013 to inform her that her citizenship was void, but she would continue to have indefinite leave to remain whilst under review.

The respondent was concerned with the claimant’s true identity and with the fact that the claimant’s DBS certificate had been withdrawn, which was required for her work.  She was suspended whilst an investigation took place.  Whilst the claimant was able to assist in proving she had the right to remain, her employer was still not satisfied as to her true identity.  The claimant was invited to a disciplinary hearing where she was represented by a Trade Union Representative.  In order to practise as a nurse, she needed a DBS check but these checks could not be carried out whilst there were concerns regarding her true identity.

The claimant was dismissed with immediate effect in the absence of satisfactory evidence as to proof of her identity. She appealed the decision by which time her DBS certificate had been reinstated and this was known to both the claimant and the respondent.  The dismissal was upheld.

The claimant claimed unfair dismissal at the Employment Tribunal but was unsuccessful.  The Tribunal said that the principle reason for the dismissal was not gross misconduct but ‘some other substantial reason’ of a kind such as to justify dismissal.

The claimant appealed the decision but the Employment Appeal Tribunal dismissed the appeal. The EAT held that although the Tribunal had not adopted the structured approach indicated by section 98(1) and (4) of the Employment Rights Act 1996, there was no error of law in its conclusion that the dismissal was for ‘some other substantial reason’ that was justified in these circumstances.  It held that the dismissal fell within the band of reasonable responses in the circumstances of this case, and noted that in such circumstances, the employers should not be expected to investigate too far beyond what official information they reasonably obtain from a responsible public authority. 


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