Ssekisonge v Barts Health NHS Trust

Under section 98 of the Employment Rights Act 1996, a tribunal should identify whether the employer has established a potentially fair reason before deciding whether dismissal for that reason was reasonable. A failure to state those stages separately will not amount to an error of law where the reasons, read fairly as a whole, show that both were addressed.

In a dismissal for some other substantial reason, fairness requires regard to the injustice and prejudice to both parties. An employer responsible for vulnerable patients may reasonably dismiss a nurse where unresolved and reliably supported doubts about identity prevent full identity and background checks, even if the employee retains a right to work. The appellate tribunal may not substitute its own view merely because another reasonable employer might have acted differently.

The Claimant, a nurse employed by an NHS Trust, was dismissed after the Home Office maintained that her true identity differed from that under which she had obtained employment. Her DBS certificate had initially been withdrawn. Although it was later reinstated and she retained indefinite leave to remain and the right to work, the Trust remained unable to complete identity and background checks to its satisfaction.

The Employment Tribunal at East London, in a judgment promulgated on 13 January 2016, held that the principal reason was some other substantial reason and that dismissal was fair. The Claimant appealed, arguing that the Tribunal had misapplied section 98 of the Employment Rights Act 1996, failed to balance prejudice, and permitted reliance on the Home Office position without a reasonable assessment of her evidence.

1. Appeal dismissed. The Employment Tribunal made no error of law in holding that the dismissal was for some other substantial reason and was fair under section 98 of the Employment Rights Act 1996.

2. Section 98 requires two inquiries: whether the employer has shown a reason of a kind capable of justifying dismissal of an employee in the relevant position, and whether dismissal for that reason was reasonable in the circumstances. The Tribunal did not express the analysis in that structure. Read as a whole, however, its findings that an NHS Trust needed to verify the identity of a nurse, and had reasonable grounds for its unresolved concerns, answered the first inquiry.

3. The Tribunal had sufficiently considered the balance of prejudice. It recognised the severe injustice to the Claimant, including the practical inability to satisfy the Trust while the Home Office maintained its view. It was nevertheless entitled to give weight to the Trust’s responsibility for patients, including vulnerable patients, and to the risk that full background checks could not be performed.

4. The Trust had conducted a detailed investigation and had extensive contact with the Home Office. It was entitled to place weight on the Home Office’s specialist assessment of identity. An employer need not independently investigate information supplied by a responsible public authority, but it must not accept it uncritically and should ensure sufficient formality and specificity before acting.

5. A different reasonable employer might have retained the Claimant. That did not make this dismissal outside the band of reasonable responses. In the absence of a misdirection or perversity, the Employment Appeal Tribunal could not substitute its own assessment.

Permission to appeal to the Court of Appeal and the Respondent’s costs application were refused.

• Employment Appeal Tribunal: Appeal dismissed; permission to appeal to the Court of Appeal refused: [2017] UKEAT 0133_16_0203.
• Employment Tribunal, East London: Judgment promulgated on 13 January 2016. The Tribunal held that dismissal was for some other substantial reason and was fair.