In the case of Miss W Sims v The London Borough of Lewisham and Governing Body of Adamsrill Primary School the Employment Tribunal held that an employee had been discriminated against after assumptions were made about her character based upon her nationality.
The facts in Miss W Sims v The London Borough of Lewisham and Governing Body of Adamsrill Primary School
Miss W Sims (the ‘Claimant’) commenced employment with the London Borough of Lewisham (the ‘First Respondent’) on the 2 March 2015 as a Teaching Assistant (scale 5). Her previous DBS checks had always been clear as she had previously worked for the London Borough of Bromley and Croydon as a Teaching Assistant for over 15 years and appreciated the importance of DBS checks. The Claimant was born in the USA to an African American mother and a Scottish father. She was of American nationality. Her mother brought her to England in 1981 or 1982 when she was 4 or 5 and on her entry into the UK, she was given indefinite leave to remain. Sadly her mother died when she was aged 12 and she was placed into care by Newham Council. The Claimant remained in care until she was 18. The Claimant was given her old American Passport from 1992 which had an Indefinite Leave to Remain (ILR) stamp and she was told that as long as she had the passport her ILR was ‘fine’ and could not be revoked. The Claimant’s line manager was the Headteacher of the School, Dr Eko (the ‘Second Respondent’).
On the 5 March 2018 the Claimant was asked by the Second Respondent to go through a DBS check. She produced a number of documents including her expired American Passport but also a copy of her tenancy agreement and her tax code. The on-line DBS system was a new process brought in by the Second Respondent and would not allow them to move beyond the visa section as it required the ILR to be in the current passport or for her to produce a Biometric Residents Permit (BRP). The Claimant did not possess a BRP at the time.
The Claimant attended a meeting on 16 April 2018 bringing along all her documents, including her National Insurance (NI) number, old passport, council tax document, old DBS checks dating back to 2003 and her mother’s death certificate. She was asked by the Second Respondent to provide evidence of her right to live and work in the UK and the Claimant handed over copies of her passports. The Claimant explained about her background and the reason she did not have original copies of several of the documents. The Claimant was told by the Second Respondent at the meeting, that even though she had an ILR stamp in her passport, “it was expired and the advice from Lewisham HR was that it was no longer valid”. The Claimant responded that her ILO could not expire but was told by the Second Respondent that “Lewisham HR believed that [the Claimant] had a lack of evidence to continue to prove [her] right to live and work in the United Kingdom”. She was told her they had little choice but to suspend her or she would be fined for not having a valid DBS. The Claimant was suspended from her job in this meeting. The Second Respondent then emailed the HR representatives of the First Respondent on 16 April informing them the Claimant had been suspended due to not appearing to have the right of stay and seeking advice on how to proceed after taking the initial step of suspending her. The email went on to state that the Claimant “Does not have her birth certificate or anything to prove her identity. Has a stamp in her passport with a right of abode in the UK but this makes link to a previous passport which she is no longer in possession of”. The letter also stated under the heading ‘Moving on’ that the school “cannot keep her in employment when she does not have the right to work in the UK, hence the suspension” (this proved inaccurate).
The suspension letter sent to the Claimant dated 19 April 2018 warned her that she may be dismissed, and her was pay suspended from 1 May 2018. The letter stated the reason for suspension was due to lack of evidence of her right to live and work in the UK. No mention was made of the Claimant’s IPL. The Claimant was asked to attend a meeting on the 30 April 2018. Prior to the meeting on the 30 April 2018, the First Respondent sent to the Second Respondent a draft of a dismissal letter on the 27 April which gave the impression that dismissal was a foregone conclusion.
On the 24 April 2018 the Claimant wrote to her MP to try to resolve the situation and to get some advice. In this letter she said that she had been getting conflicting advice from various agencies about her situation and this left her feeling “judged, alienated, scared and anxious”.
At the meeting on 30 April 2018, the Claimant explained that she arrived in the UK when she was a child and that after her mother died when she was 12, she was then taken into care. She explained that her passport was given to her when she was 16 by her social worker and she was told not to lose it as it bore the stamp that was her indefinite leave to remain permit. She went to explain that she had been working for a number of local authorities as a Teaching Assistant without any incidents. When she was asked why she did not have her mother’s passport or her original documents, she stated at the meeting that a responsible parent is unlikely to give their 12 year old child these kind of important documents to look after. According to the Claimant the First Respondent responded “that was a very good story but your mum was obviously an illegal immigrant which would make you an illegal immigrant”. The Claimant was angry and upset by this comment. She was also asked how she had avoided detection without official identification documents and denied she had avoided or evaded detection saying she had been employed by Bromley and Croydon, and had used her passport as identification when she applied to the Respondent for a job. The First Respondent then stated she did not have the necessary documentation to live and work in the UK and they would notify the relevant authorities. The Claimant became very distressed and upset at this stage in the meeting and had to leave the meeting to gather her composure. Upon her return she was handed the letter of dismissal by the Second Respondent. The letter had changed from the original draft of 27 April 2018 where it had stated that if the Claimant could provide evidence that she had a right to work and live in the UK, the school would consider a job application, should a vacancy be available. These words were not included in the final letter that was handed to the Claimant.
The Claimant lodged a claim for race discrimination and unfair dismissal on 18 March 2019.
NOTE: The Claimant got her biometric resident’s permit at the end of November 2019 and now works between 12-18 hours a week earning £8.21 per hour. This permit confirmed that the Claimant was in the country legally and had a right to work.
The decision of the Employment Tribunal (ET)
The ET found in favour of the Claimant’s claim for direct discrimination and ordered the Respondent to pay to the Claimant a payment for injury to feelings of £20,828.71. This was made up of an award of £18,000 as compensation for injury to feelings to represent the seriousness of the discrimination and the impact this had upon her, plus accrued interest.
The unfair dismissal claim was dismissed at a preliminary hearing on the 4 November 2019.
Further analysis of the ET decision
The ET referred in their decision to the creation of a hostile environment for the Claimant because she was of American Nationality. She had been falsely accused of misrepresenting her immigration status, of entering into the UK illegally and being in the country illegally and of forging her passport. They concluded this treatment was because of her Nationality. The Respondents had reached the assumption she was dishonest and illegally in the country. The Tribunal could not imagine that this approach would have been followed if dealing with a comparable case of a British citizen. They also considered how a hypothetical comparator would be treated in the same situation. A hypothetical comparator would be an employee who held a UK Passport but who had been unable to complete the online DBS check for some reason (when all previous checks had come back clear). The Tribunal concluded that although they may have been dismissed, they would not have been accused of dishonesty or of falsifying documents, nor would they have had their employment history and qualifications called into question. The Respondents had failed to show a non-discriminatory reason for the comments made in the meeting held on 30 April 2018.
Our employment lawyers’ comments
Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “This case shows that employers should, as a general rule, not make assumptions about an employee based upon a protected characteristic – doing so can potentially lead to a successful discrimination claim, as with this case.”
The decision of the Employment Tribunal in Miss W Sims v The London Borough of Lewisham and Governing Body of Adamsrill Primary School – ET/2300981/2019 can be found here.