In the recent case of Ssekisonge v Barts NHS Trust, a tribunal confirmed that SOSR is a valid defence with no higher burden of proof, which can cover situations where the employee is not at fault in any way.
The claimant, Elizabeth Ssekisonge, was a Rwandan national with indefinite leave to remain and British citizenship. She worked as a nurse for Barts NHS Trust. The Home Office had concerns over her true identity and informed her that steps would be taken to review her indefinite leave to remain.
Although Miss Ssekisonge retained her leave to remain, she was dismissed by the trust due to concerns over her identity and her failure to notify her employer about the Home Office investigation.
She brought an unfair dismissal claim.
The tribunal found that the trust’s decision was fair and in accordance with the Employment Rights Act 1996. No matter how many documents Miss Ssekisonge provided showing that Elizabeth Ssekisonge had the right to work in the UK, as long as the Home Office maintained that she was not Elizabeth Ssekisonge, those documents would never satisfy the trust.
The Employment Appeal Tribunal confirmed that SOSR requires the same burden of proof as other defences and acts as a catch-all, including dismissals where the employee is not at fault in any way. However, in this situation, as Miss Ssekisonge was working in a caring profession, the trust was better able to justify its actions and this may not be the case in all situations. Care should always be exercised when relying on the SOSR defence.