May 31, 2017

Reasonableness Threshold for Dismissal for Some Other Substantial Reason

In Ssekisonge v Barts Health NHS Trust [2017] UKEAT 0133_16_0203, the Employment Appeal Tribunal (EAT) considered the applicable threshold for determining reasonableness where a dismissal is for some other substantial reason (SOSR).

Mrs Ssekisonge was employed as a nurse by the National Health Service (NHS). She had successfully obtained British citizenship but this was revoked due to doubts cast by the Home Office (the U.K.’s immigration authority) about her identity (although her right to live and work in the U.K. was not affected). In breach of her employment contract, Mrs Ssekisonge failed to inform the NHS of this development; it only became aware of it when her criminal checks clearance (which is required to work as a nurse in the U.K.) was revoked. Mrs Ssekisonge was dismissed because of the concerns about her identity.

Mrs Ssekisonge brought an unfair dismissal claim, alleging that as her dismissal was for SOSR and she had not been at fault, a higher threshold for determining the reasonableness of the NHS’ decision to dismiss should be applied than for other dismissals (including conduct dismissals). The EAT held there was no higher threshold to be applied in such cases and found that the NHS’ decision fell within the band of reasonable responses open to it in the circumstances. The NHS is a health care provider, not an immigration expert, and as such was entitled to rely on the concerns raised by the Home Office when dismissing Mrs Ssekisonge. 

While each case will turn on its facts, it is worth noting that the EAT paid particular attention to the fact that Mrs Ssekisonge was a nurse and so in a position of trust; the decision might have been different had she been an office or retail worker.

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