Rights to Dismiss on Grounds of Uncertain Identity: Carry On, Nurse?
Ever think that you don’t really know your staff? Here is a case about how far that feeling can justify dismissal.
Elizabeth Ssekisonge gained indefinite leave to remain in the UK in 2000, qualified as a nurse in 2007 and started work with the Barts Health NHS Trust in 2011. In early 2007 she received a letter from the Home Office telling her that it believed she was not Elizabeth Ssekisonge born in Rwanda in 1960 but actually Mrs Noelita Kintu, born in Uganda in 1964. Having made this bold assertion, the Home Office then chose to do nothing about it until 2013 when it repeated the allegation, accusing Ssekisonge of lying to the authorities on her entry to the UK and therefore having obtained her British citizenship on false pretences. However, despite this, she was allowed to retain her indefinite leave to remain and hence the right to work in the UK.
Ssekisonge started legal action to challenge the loss of her citizenship but did not tell the Trust of these developments either when she was recruited or on the Home Office’s later contact with her, as her employment contract required. Ultimately it all came to the attention of the Trust through other means.
It was not disputed by the Trust that Ssekisonge did have the right to work in the UK even if her citizenship were withdrawn, that she had qualified as a nurse and that her DBS checks were in order, at least so far as they related to someone called Elizabeth Ssekisonge. It was therefore accepted that there was no legal compulsion to dismiss her as there would have been had the Home Office withdrawn her ILR or right to work. But nonetheless, there it was – the Government body charged with responsibility for policing the immigration system had concluded that Ssekisonge was in fact Kintu and neither her representations to the Home Office nor the Trust’s enquiries of it had produced any alternative view. Because the Home Office was not satisfied, nor was the Trust, even though there was no legal challenge to Ssekisonge’s right to be in the country, to work or practise as a nurse. The fact remained, said the Trust, that it just didn’t know whether its employee was Ssekisonge in the first place, a position compounded by her non-disclosure on appointment and thereafter of her ongoing issues with the Home Office.
In the end, the Trust dismissed Ssekisonge on the grounds of “some other substantial reason,” being this continued uncertainty as to whether she was who she said she was. The Employment Tribunal found the dismissal fair. Though the EAT said “a different employer acting reasonably might well have taken a different decision” (which in EAT-ese means “We would have done so too”) it was unable to find the error of law necessary to overturn that decision.
Lessons for employers
The EAT was very clear that lingering doubts about an employee’s true identity would not always be grounds for dismissal if there would be no illegality in any continued employment regardless. Being a nurse for an NHS Trust is a position of a particular responsibility for both parties, and “the position might well have been different had the [employer] been an office employer or an employer in the retail sector and [Ssekisonge] employed as a secretary or an office worker“.
The EAT also considered how far an employer is entitled or obliged to rely on the views of Government and other official bodies, including but not limited to the immigration authorities. While its approach to those views could not be totally uncritical, said the EAT, “In our view it is plain that an employer cannot be expected to carry out its own independent investigation in order to test the reliability of the information provided by a responsible public authority. It will typically have neither the expertise nor the resources to do so“. That is not to say that the employer cannot seek to support its employee in representations to the Home Office, etc, but only with great care should it proceed on the basis that the information provided by an official body is wrong. Despite all the evidence provided by Ssekisonge, therefore, the Trust was entitled to share the Home Office’s doubts.