Teaching assistant succeeds with race discrimination claim following assumptions about right to work status

On 05 March 2018, three years after commencing employment at Adamshill Primary School, Miss Simms was asked by her employer to go through another DBS check.

Miss Simms was born in the USA and came to England with her mother in the early 1980s when she was four or five years old. Upon her entry into the UK, she was given indefinite leave to remain, and after her mother passed away when she was 12, she was placed into care by Newham Council. She remained in care until she was 18, when her old American passport containing her Indefinite Leave to Remain (ILR) stamp, was returned to her.

Although Miss Simms’ previous DBS checks had all been clear, the new online process adopted by the second respondent would not allow them to move beyond the visa section, as it required the ILR to be in the current passport.

As the school was having difficulties in processing the DBS check, they sought HR advice from the local authority who advised that “for the DBS purpose a new passport must also show a stamp or a residence permit”. At this stage, the school began to be concerned that Miss Simms did not have the right to live or work in the UK and decided to suspend her. At the tribunal hearing, the school was unable to explain how it had reached this decision. On the face of it, the school had taken the problem with the DBS check and decided that this meant that Miss Simms did not have the right to live and work in the UK without seeking any advice. HR for the local authority also began to cast doubt on the right of Miss Simms to live and work in the UK.

Miss Simms attended a meeting on 30 April 2018, along with representatives from the local authority and the school. During the meeting, the tribunal accepted the account given by Miss Simms that the local authority had stated that “your mum was obviously an illegal immigrant, which would make you an illegal immigrant” and she was asked how she had “avoided detection for all this time considering she had no official identification documents”. The tribunal accepted that Miss Simms had been accused of dishonesty or of falsifying documents. Miss Simms became distressed and at the end of the meeting was handed a letter informing her that her employment had been terminated. The letter did not state that the school would be happy to employ Miss Simms again in the event that she could show that she had a right to live and work in the UK.

The employment tribunal confirmed that neither respondent denied at the tribunal hearing that the claimant had the right to live and work in the UK. In view of the ILR, there was no reason for either respondent to have reached any other decision at the time. The comments made at the dismissal meeting were distressing to the claimant and were not based on evidence.

As the claimant’s immigration status was the central issue, it was clear that her nationality was the reason why she had been treated in this manner and thus, both respondents had discriminated against her on the grounds of race for the purposes of the Equality Act 2010. The tribunal also considered whether a hypothetical employee who held a UK Passport, but who had been unable to complete the online DBS check for some reason would have been treated more favourably. The tribunal decided that they would not have been accused of dishonesty or of falsifying documents and they would not have had their employment history and qualifications called into question.

Mrs Simms was awarded £18,000 in respect of injury to feelings caused by the discrimination.

Please note, the information included in this update is correct at the date of publishing.