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Double take: No higher threshold for ‘no fault’ SOSR dismissals

21 April 2017 #Termination

The EAT has held in Ssekisonge v Barts Health NHS Trust that the dismissal of a nurse whose identity raised concerns was fair on the ground of ‘some other substantial reason’ (“SOSR”) and that no higher threshold existed for dismissals involving ‘no fault’ on the part of the individual.

The Claimant’s British citizenship had been revoked when the Home Office had doubts about her true identity. However, her leave to remain and entitlement to work in the UK remained unaffected. Despite this, the Claimant was dismissed following a disciplinary process relating to concerns over her identity and conduct.

The ET (with which the EAT agreed) found that the principal reason for the dismissal was the employer’s uncertainty surrounding the Claimant’s identity. The Trust was entitled to hold that these doubts posed a risk surrounding the ability to conduct an accurate full criminal record check (given the Claimant’s role) and this was sufficient to justify her dismissal for SOSR as certainty as to her identity was essential to her role.  The EAT also rejected the argument that a ‘no fault’ SOSR dismissal had a particularly high threshold for employers to meet.

This case reinforces and clarifies the existing law by confirming that there is no higher burden on the employer in establishing fairness for ‘no fault’ dismissals in SOSR situations.  In addition to satisfying itself of the identity of its employees, employers should also ensure that they have complied with their legal obligations to carry out right to work checks for employees.  For more information please contact our Employment team for further assistance.

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Michael Hibberd

Michael Hibberd
Senior Solicitor

E: mhibberd@clarkslegal.com
T: 0118 953 3905
M: 0779 900 7511