How high is the threshold for dismissal for some other substantial reason?
There are 5 potentially fair reasons for dismissing an employee: conduct, capability, redundancy, statutory illegality or “some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held” (SOSR).
The final reason (SOSR) is fairly wide and generally used when an employer’s reason for dismissal does not fall within the other four potentially fair reasons. While there is no statutory guidance as to what amounts to SOSR, it is clear that the reason must be ‘substantial’. Nevertheless the interpretation of ‘substantial’ is extremely subjective and it therefore depends on the individual facts of each case as to whether the reason is fair to justify a dismissal. The EAT has however recently confirmed that the threshold for justifying a dismissal for SOSR is not particularly high.
In Ssekisonge v Barts Health NHS Trust the claimant came to the UK as a nurse, obtained indefinite leave to remain and was then granted British citizenship. However shortly after there were concerns about her identity and the Home Office revoked her citizenship. Her leave to remain and ability to work in the UK was not affected by this however she was dismissed by the Respondent following a disciplinary procedure because of concerns over her identity and conduct. The Claimant then brought a claim for unfair dismissal. The Employment Tribunal found that the principal reason for her dismissal was the lack of certainty around her identity and found her dismissal fair for SOSR. The Employment Tribunal took into account the nature of the Respondent and the Claimant's role as a nurse. The potential risk for the NHS Trust and its patients by not having a full background checks, justified the dismissal.
The EAT did not find the Employment Tribunal’s decision to be an error of law, rejecting the appeal and finding the claimant’s s dismissal to have been fair. The EAT held that the threshold for justifying a dismissal based on SOSR was not particularly high. Having considered case law, the EAT supported the fact that employers should be entitled to treat official information as a reliable source. Employers should not be expected to conduct further investigation far beyond information available from a public authority.
This case should however been read in its context. Here the claimant was a nurse working for an NHS Trust and therefore certainty around her identity was highly important. The position may be different if the same issue arose in the retail sector for example.
If you require any further advice on this, or any other Employment law matter, please contact the Chattertons Employment law team at your nearest office.