The Claimant was granted indefinite leave to remain in the UK in 2000 and went on to obtain British citizenship. She started working for Barts Health NHS in 2011.
In 2013, the Home Office alleged that the Claimant was not who she said she was and revoked her citizenship. Despite this, the Claimant’s indefinite leave to remain and right to work remained unaffected.
The Claimant did not inform Barts Health NHS about the revocation of her citizenship although she was required to do so under her contract of employment. Barts Health NHS did however find out from other sources.
The Claimant’s right to work in the UK was not an issue and it was not disputed that she was a qualified nurse. There was therefore no legal requirement for Barts Health NHS to terminate her employment (as would have been the case if the Claimant’s indefinite leave to remain had been withdrawn). Nevertheless, Barts Health NHS decided to dismiss the Claimant following a disciplinary process on the grounds of “some other substantial reason” (“SOSR”). The reason being that there was a continued uncertainty as to her identity.
The Claimant brought a claim for unfair dismissal.
The Employment Tribunal held the dismissal on the grounds of SOSR was fair. Given the Claimant’s role was as a nurse, it was essential that her identity was certain.
The Claimant appealed, arguing there was a particularly high threshold for employers to make a dismissal reasonable in a ‘no fault’ SOSR dismissal.
The Employment Appeal Tribunal rejected the Claimant’s appeal. It stated that an employer should not be required to carry out an independent investigation to test the reliability of information they are provided with by a responsible public body. However, it also noted that dismissal in cases of uncertain identity may not always be fair and this will always depend on the facts of the case.
The test of fairness is the same standard in ‘no fault’ SOSR dismissals as in any other case of dismissal – is the dismissal within the band of reasonable responses available to the employer? The dismissal in this case was found to be fair because the Claimant had a role of particular responsibility. However, if the employee did not work in a role with such responsibility then dismissal on the grounds of uncertain identity may not have been fair.
If you would like to speak to us about dismissing an employee on the grounds of SOSR, please feel free to email us or contact us on 0191 282 2880 for a no obligation chat.