When you find you do not actually know your staff can you go so far as to terminate their employment? In Ssekisonge v Barts Health NHS Trust, the Employment Appeal Tribunal (EAT) has recently rejected an appeal by a Claimant dismissed when questions about her true identify were raised, and the decision will be helpful to employers who find themselves doubting whether someone is who they claim to be.

Background

Elizabeth Ssekisonge gained indefinite leave to remain in the UK in 2000, enabling her to live and work freely in the UK, and later obtained British citizenship.

In early 2007 the Home Office wrote to Ms Ssekisonge saying they had concerns about her true identity. They believed that she was not really a 47 year old Rwandan but Noelita Kintu, born in 1964 in Uganda. She denied this and did not return her certificate of naturalisation and passport as asked. The same year, she qualified as a nurse and in 2011 began working for Barts Health NHS Trust, where she successfully passed a Criminal Records Bureau (now Disclosure and Barring Service or DBS) check as Elizabeth Ssekisonge. Perhaps unsurprisingly, she did not tell Barts of the Home Office correspondence.

Oddly, the Home Office did not contact her again until 2013, when it repeated the assertions and accused her of lying when she entered the UK (meaning she was granted British citizenship on false pretences). While she lost her British citizenship she retained her right to live and work lawfully in the UK.

Ms Ssekisonge began legal action against the Home Office but (contrary to her contract of employment) did not tell Barts anything about the loss of her UK citizenship nor the legal action. However, Bartsfound out. Her DBS certificate was revoked in April 2014 due to the concerns about her identity and the revocation of her passport, but was reinstated when her indefinite leave to remain status was confirmed.

Barts agreed that Ms Ssekisonge had the right to work in the UK, and that she was a qualified nurse with valid DBS checks - if she was in fact Elizabeth Ssekisonge. They agreed that they were not legally required to dismiss her as she had an ongoing right to work. However, the Home Office still considered her to be Ms Kintu and neither her representations, nor Barts’ own investigation, had proved otherwise.

Barts could not be satisfied that she was actually Ms Ssekisonge, and she had not disclosed these facts on appointment or following her receipt of the subsequent Home Office correspondence.

Following a long period of detailed investigation, during which time Ms Ssekisonge was suspended from work, Barts dismissed her in October 2014 for ‘some other substantial reason’ – namely, the uncertainty about her identity which Barts did not consider had been addressed, her conduct in not disclosing it and her lack of openness and transparency about the revocation of her citizenship.

The tribunal decision

The employment tribunal found the dismissal fair for some other substantial reason. The principal reason for dismissal was that Barts could not be certain of the Claimant’s identity. In light of the Claimant’s role certainty about her identity was essential. The tribunal held that there was no particularly high threshold for an employer dismissing an employee because of a ‘substantial reason’.

The EAT decision

Ms Ssekisonge argued that a dismissal required a more careful evaluation in cases where the employee is not at fault, but the EAT could not find any error of law in the tribunal’s decision. Whilst the tribunal did not follow the structured approach set out in sections 98(1) and (4) of the Employment Rights Act 1996 (in which they must conclude the reason for the dismissal and that the dismissal was fair in all the circumstances), the EAT felt that the dismissal fell within the band of reasonable responses open to an employer for this case particularly given Ms Ssekisonge’s job.

Ms Ssekisonge also pleaded that, as there was no entitlement to work issue, the tribunal should have more properly considered the balance of prejudice in the decision to terminate her employment, not least the harm which would be caused to her because she might struggle to find another job.

While the EAT expressed sympathy for Ms Ssekisonge, it did not find any legal error: “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“.

An employer can choose to support an employee if the employee wishes to make representations to the immigration authorities in connection with their application, but the EAT felt they should be careful in deciding that information provided by the authorities, or another official body, is wrong. Barts was entitled to share the Home Office’s doubts and should not be expected to investigate too far beyond the official information it could reasonably obtain about an employee from a responsible public authority.

The EAT did however find that “a different employer acting reasonably might well have taken a different decision” and that “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“.

Penalties for employing illegal workers

Immigration breaches remain a focus of the Home Office. Under section 35 Immigration Act 2016 (which came into force following this hearing), the Home Office can take criminal proceedings against employers who know or have reasonable cause to believe that they are employing someone illegally. This can lead to an up to 5 year prison sentence.

This sits alongside the existing civil penalty regime under the Immigration, Asylum and Nationality Act 2006 through which companies can receive fines of up to £20,000 per illegal worker. Undertaking rigorous right to work checks, knowing who you are employing, and retaining compliant right to work evidence will provide a defence against these charges.

Lessons for employers

Can an employer rely on the views and findings of bodies such as the immigration authorities even where an employee still has the lawful right to work in the UK?

This case may have been less clear cut on different facts. The EAT was, after all, clear that doubts about an employee’s true identity would not always give an employer grounds to dismiss if there would be no illegality if they did continue to employ that person. In this case Ms Ssekisonge was a nurse and held a position of trust.

Maintaining a contractual requirement that an employee informs you if their right to work circumstances changes remains a valuable clause in a contract of employment. This was specifically flagged by the EAT.

If an employer finds itself in this situation it is important it conducts a thorough and comprehensive investigation into the circumstances. The detailed investigation by Barts and their close contact with the Home Office was noted by the EAT in its judgment. In a number of cases recently a thorough and thoughtful investigation has provided a defence in cases where doubts have been raised about someone’s ongoing right to work lawfully in the UK.

Allowing an employee to make representations, making use of the free Employer Checking Service to access Home Office records about their right to work lawfully in the UK and, if appropriate allowing a longer period in which to appeal a decision, have all been looked upon favourably by the Courts in recent years.