Ssekisonge v Barts Health NHS Trust UKEAT/0133/16/LA
Appeal against a finding that the Claimant's dismissal for some other substantial reason was fair. Appeal dismissed.
The Claimant was a nurse who had obtained British citizenship. However, there was a Home Office investigation into her true identity and suspicions that she had obtained her indefinite leave to remain and her British citizenship under false pretences. The Respondent, not unnaturally, was concerned, both by the doubt about the Claimant's true identity and the withdrawal of her DBS certificate, which was a requirement for her in her work as a nurse. After a period of suspension, the Claimant was dismissed in the absence of satisfactory evidence as to proof of her identity and her right to work having been provided (her DBS certificate having been reinstated by this time). She claimed unfair dismissal at the ET but was unsuccessful, the ET saying that the principal reason for dismissal was not gross misconduct but some other substantial reason of a kind such as to justify dismissal. The Claimant appealed.
The EAT dismissed the appeal. Although the ET did not adopt the structured approach indicated by section 98(1) and (4) ERA 1996, there was no error of law in its overall conclusion that dismissal was for some other substantial reason that justified dismissal of a nurse in the circumstances; and the dismissal fell within the band of reasonable responses in the circumstances of this case.
Appeal No. UKEAT/0133/16/LA
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
On 2 March 2017
THE HONOURABLE MRS JUSTICE SIMLER DBE (PRESIDENT)
MS G MILLS CBE
MR T STANWORTH
BARTS HEALTH NHS TRUST (RESPONDENT)
Transcript of Proceedings
For the Appellant MR DAVID RENTON (of Counsel) Instructed by: Isaac Akande & Co Solicitors 210 Heathway Dagenham Essex RM10 9NR
For the Respondent MS HOLLIE PATTERSON (In-house Counsel) Capsticks Solicitors LLP 1 St George's Road Wimbledon London SW19 4DR**SUMMARY**
UNFAIR DISMISSAL - Reason for dismissal including substantial other reason
Although the Employment Tribunal did not adopt the structured approach indicated by section 98(1) and (4) Employment Rights Act 1996, there was no error of law in its overall conclusion that dismissal was for some other substantial reason that justified dismissal of a nurse in the circumstances; and the dismissal fell within the band of reasonable responses in the circumstances of this case. The Employment Tribunal had sufficient regard to the balance of prejudice in coming to that conclusion. Absent any error of law or perversity, the Employment Appeal Tribunal cannot substitute its decision for that of the Employment Tribunal.**THE HONOURABLE MRS JUSTICE SIMLER DBE (PRESIDENT)****Introduction**
- This is an appeal from a Judgment of the Employment Tribunal sitting at East London (comprising Employment Judge Russell with members, Ms Conwell-Tillotson and Mr Ross) promulgated on 13 January 2016 following a three-day hearing. The Tribunal concluded that the Claimant's dismissal was for a reason that fell within the heading "some other substantial reason" and that her dismissal was fair in all of the circumstances of the case. There are other findings, which do not concern us on this appeal. The holding that the Claimant's dismissal for some other substantial reason and was fair is challenged on this appeal.
- We refer to the parties as they were before the Tribunal for ease of reference. The Claimant is represented by Mr David Renton of counsel, who did not appear below. The Respondent resists the appeal and appears by Ms Hollie Patterson of Capsticks Solicitors, who did appear below. We are grateful to both of them for their helpful submissions.
- When the appeal was permitted to proceed to a Full Hearing, HHJ David Richardson directed that there would be value in the appeal being heard with lay members. His conclusion has proved correct; this is the unanimous Judgment of all three of us, and both lay members have had input into our conclusions.
- The facts can be summarised by reference to the Tribunal's findings. The Claimant came to the United Kingdom from abroad and was given indefinite leave to remain by the Home Office on 27 October 2000. The name given by her in her application was Faridah Mukabarisa, with a date of birth of 19 July 1960 and Rwandan nationality identified. With indefinite leave to remain she had the right to work in the United Kingdom, and was granted British Citizenship on 23 April 2006. She subsequently changed her forename to Elizabeth on 28 May 2007, and on subsequent remarriage she adopted the surname of her husband and was from then onwards known as Elizabeth Ssekisonge.
- On 2 January 2007 the Home Office wrote to her questioning her right to British Citizenship and stating the Home Office view that the name given on entry into the UK was not her true name and that she was in reality Mrs Noel Kalemba Kintu, born on 25 December 1964 and of Ugandan nationality. The Home Office informed her that steps would be taken to deprive her of her Citizenship and asked her to return her certificate of naturalisation and British passport. The Claimant responded disputing that she was Mrs Kintu.
- In 2007 the Claimant qualified and was registered as a nurse in the United Kingdom. She worked for a number of NHS Trusts before commencing employment with the Respondent on 7 March 2011. As part of the recruitment process, she provided her British passport as documentary evidence of her right to work. She did not tell the Respondent when she was offered employment or thereafter that there was any outstanding query in relation to her nationality or the validity of her passport.
- The Home Office did not contact the Claimant again until September 2013. The delay is very unfortunate and entirely unexplained. By a letter dated 12 September 2013 the Home Office said information received by it indicated that her identity was that of Noelina Kalemba Kintu, a Ugandan Citizen born on 25 December 1964, and that it had decided that her British Citizenship should be declared null and void as a consequence. She was told that she was not and never had been a British Citizen and that her naturalisation was null and void. The letter continued that she would therefore revert to the state that had existed prior to the grant of Citizenship, namely that she would have indefinite leave to remain, and that status would be reviewed in light of her conduct. The Claimant has challenged that decision by way of judicial review, but the Tribunal recorded the fact that application was submitted out of time and the Claimant was given leave to proceed on the limited ground of the effect of section 6 of the British Nationals Act 1981 and not on the broader issue of her true identity. Neither side has sought to go behind that statement by the Tribunal, although Mr Renton submits that issues of identity will form part of the judicial review challenge. Having received that letter dated 12 September 2013, the Claimant did not notify the Respondent of the Home Office decision. The Tribunal found that she was required to do so by her contract of employment.
- On 14 April 2014 the Disclosure & Barring Service ("DBS"), which is an external agency engaged to check that employees are legally entitled to work, informed the Respondent that the Claimant's DBS certificate had been revoked. The statement was in these terms:
"The Disclosure issued is unreliable/inaccurate and is withdrawn. If the applicant is still working it is without Disclosure clearance. The DBS has noted that the nature of the work suggests that there is a high risk of harm if employment continues. The subject's identity is not verified and ongoing investigation suggests it to be false."
That statement was based on information provided to DBS that the British passport used to verify the Claimant's identity had been revoked. The Respondent was told that the Claimant had been informed of this in September 2013 and that there was an ongoing investigation.
- The Respondent, not unnaturally, was concerned, both by the doubt about the Claimant's true identity and the withdrawal of the DBS certificate, which was a requirement for her in her work as a nurse. She was suspended and asked for documents proving her identity. She provided a copy of her passport together with Deed Poll change of name certificates, a second passport in the name of Ssekisonge and the Home Office letter granting her indefinite leave to remain. The documents were not considered satisfactory and because there were ongoing concerns, the Respondent decided that the Claimant should be suspended pending further investigation. The matter was referred to the Respondent's Counter Fraud Team, and that team contacted the Home Office. The Home Office view was that it was likely the Claimant had obtained her indefinite leave to remain and her British Citizenship under false pretences. The Claimant was told there would be an investigation, and an investigating officer, Mr Habermann, was appointed. The Tribunal found that to be a nominal appointment with the substance of the investigation conducted on the Respondent's behalf by Ms Lorna Cunnew, a member of the specialist Counter Fraud Team.
- On 21 May 2014 the Home Office sent Ms Cunnew a signed statement from a caseworker confirming that the Home Office considered that the Claimant's true identity was Noel Kalemba Kintu or Noelina Kalemba Kintu, a Ugandan national.
- There was further correspondence on 5 June 2014, when the Claimant was written to and her ongoing suspension was confirmed. She was told that the Respondent had recently been informed that her current passport and indefinite leave to remain had been revoked. That suggestion was incorrect insofar as her indefinite leave to remain had not been revoked, though it was subject to review. The Tribunal found that this was a genuine error caused by the Home Office references.
- Ms Cunnew met with the Home Office and NHS Business Services Authority to collate the evidence available about the Claimant's identity and to decide what action was required. The Claimant was asked to provide further documents to prove her identity, and she sought to do so by enclosing letters to the Respondent from the Rwandan High Commission, which confirmed their recognition of her as a national. She also sent copies of letters to the Home Office from her solicitor and evidence that she was advancing in ongoing judicial review proceedings.
- On 16 August 2014 she provided a letter from UK Visas & Immigration to her MP, which referred to the Employee Checking Service that could be used by an employer and confirmed in writing that the Home Office had not revoked her indefinite leave to remain status. That letter was sent to Ms Cunnew, but she was not satisfied that it resolved doubts about the Claimant's identity.
- In early September 2014 Ms Cunnew produced a report setting out the evidence revealed by her investigation, including the factual background. The report noted that the numerous documents provided by the Claimant to support her position that she had the right to work were not regarded as satisfactorily addressing the remaining concerns that existed as to the Claimant's true identity. The content of the report showed that Ms Cunnew accepted the Home Office's assertion that the Claimant's true identity was Kintu rather than Ssekisonge.
- There was then an investigation report produced by Mr Habermann, but the Tribunal found he had not conducted any independent investigation of his own but adopted the Counter Fraud investigation due to their greater expertise and involvement in the process.
- The Claimant was invited to a disciplinary hearing to address an allegation that she was unable to verify her identity and her ability to work legally in the UK. By the time of the disciplinary hearing she had been issued with a biometric residence permit by the Home Office, and the Home Office had also issued her with a travel document that permitted her to travel to and from the UK and Rwanda. She refuted the Home Office's assertion that she was Mrs Kintu, and relied on the fact that she had indefinite leave to remain, which gave her the legal right to work.
- The hearing that took place on 16 October 2014 was chaired by Mrs Humphrey. The Claimant was represented by a trade union representative. She repeated her position that the allegations leading to issues as to her true identity were motivated by malice and made by her ex-husband. She said she did not believe she needed to notify the Respondent of the Home Office concerns because she continued to have indefinite leave to remain and the right to work. Mrs Humphrey considered the evidence during an adjournment and communicated her decision to the Claimant thereafter that she was satisfied that the Claimant's identity remained in question and caused her serious concern as to the Claimant's right to work and right to practise as a nurse. Mrs Humphrey was concerned that the Claimant's DBS check had been withdrawn and that there remained a question about her true identity such that proper checks could not verify whether or not she was somebody who was suitable to work with patients or whether there was a risk of harm. Mrs Humphrey recognised that the matter was subject to judicial review but felt that she could not await the outcome of that, which might take a long time. She decided that the Claimant should be dismissed with immediate effect in the absence of satisfactory evidence as to proof of her identity and her right to work having been provided.
- There was an appeal to Ms Blucher, the appeal officer, who dealt with the appeal by way of a review. By the stage at which the review was conducted it is common ground that the Claimant's DBS certificate had been reinstated and this had been communicated both to the Respondent and to the Claimant. The Respondent was invited to await the outcome of the judicial review proceedings and was provided with the Rwandan national identity card, which the Claimant had by that stage. Ms Blucher considered that evidence and concluded that the dismissal should be upheld. In her outcome letter she indicated that the key issue for the panel was the Claimant's identity. The outcome letter records that the evidence as provided by the Counter Fraud investigation report gave the panel sufficient reasonable concern to doubt the Claimant's identity regardless of the evidence provided at the time. The outcome letter goes on to record that the panel received and noted new evidence provided at the appeal hearing, received in November 2014. Both sides indicate that this was a reference to the DBS reinstatement certificate, and the outcome letter indicates that the panel would seek clarification as to whether this met the requirements laid out in the Counter Fraud report and whether it affected the validity of the decision to dismiss. Ms Patterson told us that if the validity of the decision to dismiss had been undermined by that evidence the panel would have reverted to the Claimant but the inference to be drawn from that not having been done is that no different decision was required.
- The Tribunal found that Ms Blucher was particularly concerned by the Claimant's lack of openness and transparency in failing to disclose the revocation of her Citizenship and she concluded that there was a lack of trust with regard to the issues for her, which were as much a question of honesty and integrity as true identity. She accepted that the documents provided by the Claimant satisfied what was required by the Respondent's policy in relation to employment but that, given that those related to the Claimant and she could not be sure that the Claimant was Mrs Ssekisonge, this could not satisfy her.
- The Tribunal gave itself a legal direction in relation to unfair dismissal at paragraphs 38 to 41. Mr Renton draws attention to the fact that the guidance it identified, in relation to the proper approach to dealing with unfair dismissal by reference to section 98, all derived from cases concerning conduct dismissals. At paragraphs 49 to 56 the Tribunal set out its conclusions in relation to the question of unfair dismissal. Since these are the subject of close scrutiny and criticism by reference to the three grounds of appeal, we set them out in full:
"49. The reason for the dismissal of the Claimant upon which the Respondent relied comprised two factual elements: firstly concern about the Claimant's true identity and, secondly, the Claimant's failure to disclose the revocation of her citizenship and passport in 2013. We have found that … Mrs Humphrey decided to dismiss because she could not be satisfied that the Claimant was in fact Mrs Ssekisonge due to the decision of the Home Office that she was a Ugandan national called Noelina Kintu. To this extent we find that the principal reason for dismissal was not gross misconduct but some other substantial reason of a kind such as to justify dismissal. The concern about failure to disclose was a reason relating to conduct but this was only a lesser part of the reason to dismiss.
50. Mrs Humphrey and Ms Blucher placed heavy reliance on the information provided to them by Counter Fraud in consultation with the Home Office. The Counter Fraud investigation was detailed and involved consideration of the evidence submitted by the Claimant and further confirmation from the Home Office as required. We find that both Mrs Humphrey and Ms Blucher had reasonable grounds upon which to base their belief.
51. We were concerned about the Respondent's evidence essentially that no matter what the Claimant said or produced, their decision would not have been different unless the Home Office accepted that the Claimant was not nor had ever been Ms Kintu. We do, however, take into account the nature of the Respondent and the Claimant's role as a nurse which requires the employer to be able to verify the identity of an individual. Whilst there is no suggestion that the Claimant was other than the person who had properly trained and qualified as a nurse and worked without difficulty or criminal conviction since 2000, Mrs Humphrey and Ms Blucher remained genuinely concerned that until the Claimant's full or true identity and background were known, identity checks could not be carried out fully. We bear in mind that one of the stated aims in the Respondent's policy for identity checks is to ensure that the individual genuinely owns the personality or identity that they are putting forward. In this case, neither Mrs Humphrey nor Ms Blucher were satisfied about the genuine ownership of identity by the Claimant. In the circumstances, we do not accept that it was a breach of policy for the Respondent to refuse to accept at face value what would otherwise have been sufficient documentary evidence.
52. It was suggested by Mr Oduntan [for the Claimant below] that further investigation should have been carried out by the Respondent and in particular further contact with the Home Office. We consider that there had been extensive contact between Ms Cunnew and the Home Office and that the information relayed to her was properly passed in the investigation report to Ms Humphrey and subsequently Mrs Blucher.
53. We also bear in mind that the Home Office has and continues to maintain that the Claimant was Ms Kintu and not Mrs Mukabarisa when she arrived in the United Kingdom and claimed asylum. In the circumstances, we consider that it was within the range of reasonable responses for Mrs Humphrey and Ms Blucher to believe that there was doubt about the Claimant's true identity and that she had obtained indefinite leave to remain through deception. These concerns, taken with the revocation of the DBS approval, were substantial concerns of a kind rendering dismissal within the range of reasonable responses.
54. As for the procedural criticisms raised by Mr Oduntan, we are not satisfied that the mere presence of Ms Humphrey at the suspension meeting and the fact she was subsequently copied in to two letters is sufficient to render her unsuitable to hear the disciplinary. She was not provided with any of the information as the investigation progressed and approached the disciplinary hearing in a neutral and unbiased way. Neither the Claimant nor her representative challenged the appointment of Mrs Humphrey at the time. Nor do we consider it to be a breach of the Respondent's policy or the general requirement to operate a fair procedure that Mr Habermann effectively delegated his investigation to Ms Cunnew in Counter Fraud. Given the expertise of the Counter Fraud team and the complexity of the issues to be investigated, we consider that this was a reasonable approach for the Respondent to adopt. A further procedural criticism raised by Mr Oduntan on behalf of the Claimant was that Mr Habermann had not attended the disciplinary hearing depriving the Claimant of the opportunity to question him. We do not consider this to be unfair as the content of the investigation report and the case relied upon against the Claimant was all obtained through the investigation of Ms Cunnew who did attend to be questioned.
55. In terms of alternatives to dismissal, we do not accept that it was realistic to expect the Respondent to wait what was anticipated by all to be a lengthy period until the judicial review proceedings were concluded. This possible alternative was considered by Mrs Humphrey and we accept that she was entitled to reject it and proceed on the basis of the evidence available to her at the time.
56. This is a sad case. The Claimant was in a 'catch 22' situation. She could produce as many documents as she wanted or the Respondent required showing that Elizabeth Ssekisonge had the right to work in the UK but, as long as the Home Office maintained that she was not Elizabeth Ssekisonge, the documents would never be sufficient to satisfy the Respondent. We have considerable sympathy for the Claimant and understand why the decision appeared harsh to her. However, we are not entitled to substitute our decision for that of the employer and conclude that the dismissal was fair in accordance with s.98(4) Employment Rights Act 1996."**The Relevant Legal Principles**
- Section 98 of the Employment Rights Act 1996 ("the 1996 Act") provides:
"(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show -
(a) the reason (or, if more than one, the principal reason) for the dismissal, and
(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -
(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial merits of the case."
- Save where an employee has insufficient service to pursue an ordinary unfair dismissal claim, the burden of proving the reason for dismissal and that it is a reason falling within subsection (2) or of a kind such as to justify the dismissal of an employee holding the position that the employee held within subsection (1)(b) is on the employer. The reason for dismissal is the set of facts or beliefs known to the employer that caused it to dismiss. If an employer establishes a potentially fair reason for dismissal, it is then for the Tribunal to determine whether or not the dismissal of the employee for that reason was fair, and on this issue there is a neutral burden of proof. Whether or not the employer has acted reasonably is not a question of law but a question of fact, and section 98(4) affords tribunals a wide discretion in this regard. In judging the reasonableness of the employer's conduct tribunals must not substitute their own decision for that of the employer, and in many cases, although not all, there is a band of reasonable responses in which one employer might reasonably take the view that dismissal is justified whereas another employee might reasonably take the opposite view, and both cannot be challenged as unfair. It is only where the dismissal falls outside of the band of reasonable responses that the dismissal can be challenged and adjudged unfair.
- In Dobie v Burns International Security Services (UK) Ltd  EWCA Civ 11 the Court of Appeal considered the proper approach to the predecessor to section 98, section 57, in the context of a dismissal for some other substantial reason. This was a case in which the employer came under pressure from a third party to dismiss the employee, refusing to have him continue working on the third party's premises. The reason was therefore some other substantial reason and was accepted as such by the Industrial Tribunal. In the Court of Appeal Sir John Donaldson MR set out section 57 and continued in relation to section 57:
"… I construe it as requiring the tribunal to consider the reason established by the employer and to decide whether it falls within the category of reasons which could justify the dismissal of an employee - not that employee, but an employee - holding the position which that employee held. Thus different types of reason could justify the dismissal of the office boy from those which could justify the dismissal of the managing director." (Original emphasis)
- In that case, the Tribunal concluded that pressure exerted by the third party could have justified the dismissal of Mr Dobie, but the focus of its attention was required to be on the conduct of the employer and not on whether the employee suffered any injustice. The Court of Appeal, in agreement with the EAT before it, held that was a misdirection. It said:
"… In deciding whether the employer acted reasonably or unreasonably, a very important factor of which he has to take account, on the facts known to him at that time, is whether there will or will not be injustice to the employee and the extent of that injustice. For example, he will clearly have to take account of the length of time during which the employee has been employed by him, the satisfactoriness or otherwise of the employee's service, the difficulties which may face the employee in obtaining other employment, and matters of that sort. None of these is decisive, but they are all matters of which he has to take account and they are all matters which affect the justice or injustice to the employee of being dismissed."
- Sir John Donaldson MR continued, however, that:
"… neither the EAT nor this court can interfere on the basis that they would have reached a different conclusion on the issue of reasonableness, because that is an issue of fact. All that this court or the EAT can do is to consider whether there has been an error of law. They may reach the conclusion that there has been an error of law on one of two alternative bases. The first is that the tribunal has given itself a direction on law and it is wrong … The alternative basis - which is almost a [Associated Provincial Picture Houses Ltd v] Wednesbury [Corporation  1 KB 223] basis - is that no reasonable tribunal could have reached that conclusion on the evidence …"
- The danger of the appellate courts adopting an overly pernickety approach to Employment Tribunal judgments is well recognised. Mr Renton also reminds us that where there are gaps in the Tribunal's reasoning we should not fill those either.
- There are three grounds of appeal, which we deal with in turn, although grounds 2 and 3 overlap to some extent. By ground 1 Mr Renton challenges the Tribunal's decision on the basis that it failed to consider what threshold of fairness is appropriate in a "some other substantial reason" case and in particular failed to address the statutory requirement in section 98(1)(b). Mr Renton submits that the residual category of potentially fair reasons in section 98(1)(b) is a wide category that encompasses dismissals where the employee is not at fault in any way. Accordingly, the notion of fairness requires a more careful evaluation and a broader consideration of justice than might otherwise apply. He submits that the Tribunal erred in law by adopting a conduct dismissal approach in this case by reference to authorities like British Home Stores Ltd v Burchell  IRLR 379 and without proper regard to the different considerations that apply when dismissal is within the residual "some other substantial reason" category.
- Cogently as this submission was advanced by Mr Renton, we do not accept it. In our judgment, this Tribunal made a clear finding of fact that the decision to dismiss was because Mrs Humphrey could not be satisfied that the Claimant was in fact Mrs Ssekisonge and that this was the principal reason for dismissal, rather than gross misconduct as the Respondent had argued. The Tribunal found in terms that this was some other substantial reason of a kind such as to justify dismissal, recognising that there was a separate concern relating to conduct (by reference to the failure to disclose the Home Office concerns) but this formed part of the reason for dismissal and was not the principal reason. We accept, as Mr Renton argued, that the Tribunal did not separate out the two stages of analysis required by section 98 by, firstly, determining whether the reason was of a kind justifying dismissal of an employee holding the job in question, and then separately going on to consider reasonableness. Nevertheless, it seems to us, looked at as a whole and avoiding the overly-pernickety approach to tribunal judgments required of us, that at paragraphs 49 to 51 the Tribunal made findings that were relevant to the first stage of the analysis required by section 98. The Tribunal found that there were genuine concerns that until the Claimant's full or true identity and background were known, identity checks could not be carried out fully. The Tribunal took into account the nature of the Respondent and the Claimant's role as a nurse, which required an ability to verify her identity. The Tribunal found that there were reasonable grounds on which to base concerns the Respondent had about the Claimant's true identity. It seems to us that those were all considerations that were relevant and entitled the Tribunal to conclude that this reason was of a kind such as could justify the dismissal of a nurse holding employment with an NHS Trust, albeit that the Tribunal did not express its decision in quite those terms. Ground 1 of the appeal accordingly fails.
- Ground 2 challenges the decision on the basis that the Tribunal failed to distinguish between a case where, on the one hand, the immigration authorities have told the employer that a worker cannot lawfully be employed and, on the other hand, cases where the immigration authorities have told the employer that a worker can lawfully be employed. As Mr Renton correctly submits, this was not an unlawful employment case. The Home Office was not saying that the Claimant could not be employed or that there was any risk of criminal sanctions in the Respondent's continued employment of her. Moreover, the Tribunal recorded the fact that by the time of the hearing, whatever had been said before, the Respondent accepted that the Claimant had indefinite leave to remain and the right to work thereunder and that neither of those rights had been withdrawn. The Home Office position was, accordingly, that pending further investigations the Claimant could continue lawfully to be employed.
- Mr Renton submits that once it is accepted that there is no immigration status or entitlement to work issue it was incumbent on the Tribunal in assessing the reasonableness of the decision to dismiss under section 98(4) to consider the balance of prejudice and to address the relative injustice to the Claimant and what if any prejudice there would be to the employer if employment continued. He submits that the closest the Tribunal came to addressing this question was at paragraph 55, where the Tribunal considered alternatives to dismissal but accepted that it was unrealistic to expect the Respondent to await the outcome of judicial review proceedings. Mr Renton submits that if the Tribunal had properly considered the balancing exercise required of it it would have had to address a number of facts that were not addressed by it. These include the fact that there had been a considerable delay between the Home Office first raising these matters; the fact that the Home Office had not revoked the Claimant's indefinite leave to remain by the date of her dismissal and had indeed afforded her travel rights; the fact that the DBS had given her a fresh certificate, and the fact that there would be an opportunity for the Respondent to respond to any subsequent revocation of the Claimant's right to work by dismissing her at that point without any prejudice to the Respondent's operation.
- Mr Renton submits that the decision to dismiss represented the loss of the Claimant's livelihood and a risk that she would not be able to find work elsewhere. It caused her, in those circumstances, considerably more harm than any harm that would have been done to the Respondent by retaining her in employment. He submits that once it is recognised that there was no immediate immigration status concern the injustice to the Claimant in an immediate dismissal was overwhelming and the alternatives to dismissal were not limited to awaiting the outcome of the judicial review proceedings but included at least the possibility of retaining the Claimant in employment with the requirement, for example, for her to notify the Respondent about the Home Office investigation and of any decision made by the Home Office so far as her status was concerned.
- We have considered these submissions with the utmost care and have wavered in our view of them. Like the Tribunal, we consider this to be a sad case, and we have considerable sympathy for the Claimant's position. However, notwithstanding the cogency of Mr Renton's submission and our sympathy for the Claimant's plight we have concluded ultimately that we do not accept that the Tribunal fell into legal error here. In our judgment, the Tribunal was alive to the balance of prejudice and to questions of potential injustice on either side. We consider that this was expressly recognised by the Tribunal at paragraph 56.
- In assessing the fairness of the Respondent's decision, it seems to us that the Tribunal was entitled to find the following:
(1) there was a detailed investigation by the Respondent's Counter Fraud Team in consultation with the Home Office, which involved consideration of the evidence submitted by the Claimant as to her identity;
(2) there was extensive contact between Ms Cunnew from the specialist Counter Fraud Team and the Home Office with information passed both to Mrs Humphrey and to Ms Blucher;
(3) although the Tribunal was concerned as to the Respondent's evidence that no matter what the Claimant said or produced, unless and until the Home Office accepted that the Claimant's identity was genuine the Respondent's decision would not have been different, the Tribunal nevertheless had regard to the nature of the Respondent, the Claimant's role in particular as a nurse and to the importance of being able to verify her identity as an individual in that capacity; and
(4) until her true identity was known full background checks and identity checks could not be properly conducted with all the risks that entailed for an NHS Trust charged with responsibility for the care of its patients including vulnerable patients and patients potentially at risk. The Tribunal expressly recognised the difficult position that the Claimant was in, describing it as a "catch 22" situation, because she could not satisfy the Respondent as to her identity for as long as the Home Office maintained its position that she was not the person she said she was.
- In light of the factual findings made by the Tribunal, it was entitled to conclude that the decision to dismiss fell within the band of reasonable responses in this case and we are satisfied that the Tribunal had sufficient regard for the balance of prejudice in coming to that conclusion. We accept, as Ms Patterson submits, that a different employer acting reasonably might well have taken a different decision but that it was open to this Respondent to decide, in light of the fact that the Home Office maintained its position in relation to the Claimant's identity, that it could not continue to employ her because it could not be sure that full background checks could be completed and could not therefore eliminate the risk entailed in employing a nurse in those circumstances. We cannot substitute our own view for that of the employer, or the Tribunal, in this case. In those circumstances, in the absence of any misdirection of law, and there being no perversity appeal, we are driven, without any real enthusiasm, to reject this ground of appeal.
- Ground 3 challenges the decision on the basis that the Tribunal directed itself wrongly that the Claimant could be fairly dismissed without the Respondent being required to carry out any reasonable assessment of the evidence as to her identity. Mr Renton submits that a reasonable employer is ordinarily expected to carry out the investigation fairly before reaching a decision to dismiss. Here, he relies on the fact that the Respondent conceded that nothing that the Claimant said could have made a difference to the ultimate decision to dismiss. Nevertheless, he submits that the Tribunal proceeded on the basis that the Respondent had limited options either to accept what the Home Office said or to await the outcome of the judicial review. He submits there were other options, including, at its simplest, retaining the Claimant in employment on the basis of her ongoing right to work unless and until that entitlement was revoked. Alternatively, he submits that the Respondent should have obtained a clear explanation from the Home Office as to why it issued travel documents in 2014 and whether it accepted that the Claimant was the person who came to the UK in 2000, qualified as a nurse and worked as a nurse. If so, the Respondent would then need to assess carefully whether doubts about her identity prior to 2000 made it a risk to employ her, which would involve careful assessment of the evidence she put forward and a careful consideration of how to deal with the position as regards the DBS. He submits that the Tribunal failed to consider these options and ultimately accepted the Respondent's case that it was in effect free to disregard material advanced by the Claimant. The Employment Tribunal must therefore have proceeded in error of law without requiring the Respondent to make any reasonable assessment of its own in relation to evidence as to the Claimant's identity.
- Again, we have found this difficult and have wavered in our conclusions, but ultimately we consider that the Tribunal's decision cannot be read as indicating that it found the Respondent could fairly dismiss the Claimant without any reasonable assessment of the evidence as to her identity. The Tribunal set out the evidence provided to the Respondent by the Home Office, and the steps taken by Ms Cunnew to meet the Home Office and collate the evidence available as to the Claimant's identity. The Tribunal referred to the report produced by Ms Cunnew and the ongoing concerns that remained about the Claimant's true identity. The Tribunal found that Mrs Humphrey considered the Home Office to be experts in this area. She recognised the Claimant's right to work, which was not in dispute, but concluded that there was little scope for challenging the Home Office's decision as to identity and that once the additional evidence was produced in the form of the biometric residence permit, further contact was made with the Home Office but their position remained unchanged as to the Claimant's identity.
- Having considered the Tribunal's Reasons as a whole, it did assess the reasonableness of the Respondent's approach in light of all that evidence and recognising the fact that the Respondent considered there was little scope for it to challenge the Home Office decision on identity. The Tribunal took account, on the other hand, of the fact that in assessing the reasonableness of the Respondent's approach it should consider that the Respondent is an NHS Trust and the Claimant was employed as a nurse. The position might well have been different had the Respondent been an office employer or an employer in the retail sector and the Claimant employed as a secretary or an office worker, but the Tribunal's recognition of the Respondent's status and the Claimant's employment as a nurse seems to us to have outweighed the evidence that the Respondent considered that there was little scope for it to challenge the Home Office's decision on identity.
- Moreover, the Tribunal expressly addressed the question whether further contact should have been made with the Home Office and found not only that there had been extensive contact but that all information had been relayed properly to Mrs Humphrey and subsequently to Ms Blucher. The Tribunal also had express regard to the fact that the Home Office maintained its stance in relation to the Claimant's identity and continued to maintain that stance even at the date of the Tribunal hearing. As Ms Patterson submits, the Respondent is a provider of healthcare to patients and not a specialist in immigration matters or determining questions of identity. In the case of [Leach v Office of Communications ]() ICR 1269, the Court of Appeal quoted from the judgment of Underhill P (as he then was) in the EAT in that case at paragraph 38 in the following terms:
"In our judgment an employer who receives information from CAIC or a similar body, under an official disclosure regime, that an employee poses a risk to children must, in principle and subject to certain safeguards, be entitled to treat that information as reliable … In our view it is plain that an employer in such a case cannot be expected to carry out his own independent investigation in order to test the reliability of the information provided by a responsible public authority. He will typically have neither the expertise nor the resources to do so."
- The Employment Appeal Tribunal added that an employer would not be acting reasonably for the purposes of section 98(4) of the 1996 Act if he took an uncritical view of the information disclosed to him. The employer was entitled to insist on a sufficient degree of formality and specificity about the disclosure and should do that before taking action against the employee in reliance on it.
- This case bears some similarities to that one. The difficulty for the Respondent here stemmed from the risk associated with its inability to be satisfied that full identity and background checks had been conducted in relation to the Claimant's true identity. In those circumstances, the fact that the Claimant continued to retain indefinite leave to remain status with the ability to work and an ability to travel together with the DBS clearance that had been obtained in relation to her identity as Mrs Ssekisonge, could not alter or lessen that concern. As we have said, the position might have been different if the Claimant was not employed as a nurse in an NHS Trust. It seems to us, however, that once the Home Office made clear that its concerns in relation to identity were maintained, the Respondent was entitled to conclude that the doubts it had about the Claimant's identity and the risk that posed in the absence of full background DBS checks were sufficient to justify her dismissal. The Tribunal's assessment of the reasonableness of the Respondent's approach, in those circumstances, cannot be challenged as in error of law.
- In all those circumstances, and notwithstanding the considerable sympathy we have already expressed in relation to the Claimant's situation, we have been unable to detect any error of law in the Tribunal's decision. We cannot substitute our own decision for that of the Tribunal in the absence of error of law or perversity, and we cannot, in those circumstances, allow this appeal. The appeal is therefore dismissed. We are very grateful to Mr Renton for putting the Claimant's case as cogently and forcefully as he has, and the Claimant can be satisfied that all avenues have been explored on her behalf in the pursuit of this appeal.
- We refuse the Claimant's application for permission to appeal. Ground 1 is not reasonably arguable. Although we accept that the Tribunal did not proceed in the structured way that section 98(1) requires, looking at the Judgment as a whole we are satisfied that the Employment Tribunal did conclude that the reason was one that could fall within subsection (1)(b).
- Ground 2 is not reasonably arguable. We are satisfied that the Tribunal did undertake the balancing exercise required, including considering the injustice to the Claimant, and that it did so in particular at paragraph 56, where it recognised this was a sad case and the difficulty that the Claimant found herself in. Although those factors are not addressed as clearly as they are at paragraph 50 of Leach, they were addressed by the Tribunal.
- Finally, so far as ground 3 is concerned, we do not consider it is reasonably arguable. In our judgment, the Tribunal did place weight on the Claimant's role as a nurse and the fact that this employer was an NHS Trust, and those are not matters that we accept we have read into the Judgment. So far as the Home Office position is concerned, it seems to us that identity in the context in which it arose in this case is very much a matter of Home Office expertise. We do not say that binds the employer in any sense, but in a case where the Home Office has reached the concluded view that the individual is not the person he or she says they are it seems to us that is a matter that the employer is entitled to place weight on and to address.
- For all those reasons, we refuse permission to appeal, but of course the Claimant can take steps to obtain that permission from the Court of Appeal itself, though we offer no positive encouragement to do so.
- The Respondent's application for costs is refused. We are not satisfied that there was unreasonable conduct such as to justify costs in this case. There was an unfortunate situation created by the deadline imposed by HHJ Eady QC when she directed that the Respondent could serve written submissions within 14 days of her Order and the fact that came so close on the heels of the proposed amended grounds of appeal the Claimant wished to rely on. We cannot see in that chronology or what followed any unreasonable delay on the Claimant's part. On the contrary, she reacted promptly to the Judge's suggestion that her appeal should be considered carefully to see whether it raised a point of law. In her letter dated 27 May 2016 to the Respondent, enclosing her amended grounds of appeal, she made clear not only that those were fresh grounds - in other words, that they replaced the original grounds - but she also recognised the difficulty caused by the timing and offered to extend time for written submissions for a further 14 days. In our judgment, that was reasonable conduct on the Claimant's behalf and not conduct such as should attract an Order of costs in this case.
Published: 20/04/2017 10:25