Some Other Substantial Reason

13 Apr

This time around I have chosen a recent case on the SOSR defence. This has come in for some criticism in recent years from appellate courts especially where there have been other specific conduct issues which might have been relied upon. This has I think made practitioners wary of the SOSR perceiving it to be more difficult to establish requiring perhaps some higher level of proof or more cogent evidence.

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It has been busy over the last month so I apologise for having been a bit tardy in getting round to my blog posts. This time around I have chosen a recent case on the SOSR defence. This has come in for some criticism in recent years from appellate courts especially where there have been other specific conduct issues which might have been relied upon. This has I think made practitioners wary of the SOSR perceiving it to be more difficult to establish requiring perhaps some higher level of proof or more cogent evidence.

Ssekisonge v Barts Health NHS Trust UKEAT/0133/16 has dispelled this. The approach adopted by Simler J (the President) and her members confirmed that Burchell principles applied even though there was no fault on the part of the employee. The EAT go on to give us a timely reminder that as with all things Employment related the situations which give rise to a fair SOSR are not only many and varied but also tend to be situation specific.

As was pointed out over 30 years ago by the Court of Appeal in Dobie v Burns International Security Services (UK) Ltd [1984] EWCA Civ 11 different types of reason could justify the dismissal of the office boy from those which could justify the dismissal of the managing director. This is an important but often overlooked matter when advising on the application of S 98(4) ERA to the facts of a particular case.

The key finding made by the Tribunal was that the Respondent had been provided with information by the Home Office which raised reasonable doubts about the Claimant’s true identity, something which was not only denied by the Claimant but was the subject of challenge and may well have been an error on the part of the Home Office. It is also important to note that her right to work in the UK was unaffected: the sole issue was over her true identity.

Unfortunately for the Claimant she was employed as a nurse by an NHS Trust. The EAT suggested that 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 Respondent’s status and the Claimant’s employment as a nurse made it reasonable to dismiss in the circumstances.


Peter D

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