Of the five fair reasons for dismissal, 'some other substantial reason' (SOSR) is often viewed as a 'catch all' justification for dismissal. It does not give an employer freedom to dismiss for an irrelevant or trivial reason. However, the threshold to meet in order to be able to rely on an SOSR dismissal appears not to be prohibitively high in light of the recent case of Ssekisonge v Barts Health NHS Trust UKEAT/0133/16/LA.
Ms Ssekisonge was a registered nurse who worked for a number of NHS Trusts. She came to the UK and obtained indefinite leave to remain and then British citizenship. Her citizenship was revoked when the Home Office had concerns regarding her identity. Ms Ssekisonge did, however, retain her leave to remain. Following a disciplinary process, the NHS dismissed her, again due to concerns over her identity.
The Employment Tribunal found the principal reason for the dismissal was that the NHS could not determine Ms Ssekisonge's identity and the risk that this posed was sufficient to justify her dismissal for SOSR. Ms Ssekisonge appealed the decision but the Employment Appeal Tribunal (EAT) upheld the first instance decision. Certainty over an employee's identity was essential for a nursing role. The EAT rejected an argument that employers should go further than they might otherwise do when dismissing for SOSR where there is no fault on the part of the employee.
It is important to remember each case is fact sensitive. In particular the claimant in this case was waiting for the outcome of the Home Office investigation in relation to her identity and the NHS Trust was not expected to investigate further in the meantime. Employers should also be aware of their duties to check a job applicant's 'right to work' documents.
Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries. www.dentons.com.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
