Windrush scandal victim accused of faking documents by employer receives £20,800 payout

17 Jun 2020 By Maggie Baska

Tribunal finds teaching assistant falsely assumed to be in the UK illegally, and told by HR she’d concocted ‘a very good story’ to hide this, was discriminated against

A teaching assistant who lost her job after being branded an illegal immigrant by her employer during the height of the Windrush scandal has been awarded £20,829 in compensation for discrimination.

The tribunal ruled that the London Borough of Lewisham and Adamsrill Primary School directly discriminated against Miss W Sims (pictured), who worked as a teaching assistant for the school from 2015 until her dismissal in April 2018, after it accused her of being an illegal immigrant, forging her passport and “evading the authorities” to stay in the UK. 

The tribunal heard Sims was born in the US to an African American mother and a Scottish father, and that she holds American nationality. Her mother brought Sims to England when she was four or five in either 1981 or 1982. On entry into the UK, she was given indefinite leave to remain (ILR). 

Sims’ mother died when she was aged 12, and she was placed into care where she remained until she was 18. The tribunal heard Sims was given her old American passport, which had an ILR stamp, and was told that “as long as she had the passport, her ILR was ‘fine’ and could not be revoked”.

On 5 March 2018, while working for Adamsrill Primary School, Sims was asked to go through a Disclosure and Barring Service (DBS) check. The tribunal heard that, before Sims commenced employment with the school and the Borough of Lewisham, she had worked as a teaching assistant for the London Borough of Bromley for 15 years and had completed many DBS checks.

Sims produced a number of documents including her expired American passport, which contained her ILR stamp, a copy of her tenancy agreement and her tax code. However, the online DBS system the school used would not allow Sims to move beyond the visa section as it required the ILR to be in a current passport or for her to produce a biometric residency permit, which she did not possess at the time.

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Sims attempted to complete the process a second time with the school’s business manager, Sharon Donegal-Grant, but they encountered the same problem. Donegal-Grant said she was unsure how to proceed and would have to take advice from HR, and Sims said she felt it was a simple matter of contacting the DBS and explaining the situation.

On 16 April, Sims attended a meeting with the headteacher of Adamsrill Primary School, Dr Increase Eko, and brought evidence with her including her old DBS checks dating back to 2003, her mother’s death certificate and her old passport. However, she was told by Eko 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”.

When Sims informed Eko her ILR could not expire, she was told “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”. A letter subsequently sent to her stated that “the documentation [she had] provided [did] not meet the requirements set by the UK Border Agency”, and that she would be suspended while the school continued to investigate. She was warned in this letter that she may be dismissed.

However, the tribunal found no HR advice was taken before the decision was made to suspend Sims.

She attended a meeting with a member of Lewisham’s HR department, Allyson Hollidge, on 30 April, where she explained her background. Sims told the tribunal Hollidge responded by saying: “That was a very good story but your mum was obviously an illegal immigrant, which would make you an illegal immigrant.”

Hollidge then asked how Sims had “avoided detection for all this time considering [she] had no official identification documents”. According to Sims, Hollidge also alleged that her passport was fake.

Sims stated that she had been on the government website and her ILR stamp was valid, but Hollidge replied that she was lying as the organisation had taken advice from the UK Border Agency. She said she would be passing all of the information from her investigation to the relevant authorities. It was also decided that Sims would be dismissed.

On 15 February, Sims received her biometric residency permit following her application to the Windrush taskforce.

She brought claims of unfair dismissal and race discrimination against the Borough of Lewisham and Adamsrill Primary School on 18 March 2019.

The tribunal unanimously ruled that Sims was directly discriminated against by both the school and the local authority because of her nationality. 

In her ruling, Judge Gill Sage said “prejudicial and false preconceptions” were made about Sim’s immigration status because of her nationality. She said her employer had assumed “her to be dishonest and illegally in the country”.

“This was a hostile environment that had been created… because of the claimant’s nationality,” Gill added.

The tribunal ordered the school and council to pay Sims £20,828.71 for injury to feelings.

Paul Holcroft, associate director at Croner, said that in light of the Windrush scandal and recent events, racial inequality remained a key issue in Britain. He said employers needed to remember they could be just as liable for discriminating against an individual for their perceived nationality as their actual nationality.

"It is therefore crucial that, when considering if an individual does have the right to work in the UK, appropriate checks are carried out on relevant documents, such as passports, before any decisions are made," Holcroft said. "Employers will not be expected to be experts in identifying falsified documents. However, the checks will need to identify, as far as a reasonable person could, if there are issues with them."

Kim Wright, chief executive of Lewisham Council, said the "claims presented" by Sims "tell a very upsetting account of feeling both victimised and unsupported". She added: "We recognise that the entire experience has had a considerable impact on her wellbeing, and we have offered Ms Sims a sincere apology.  

"We will also be reviewing what we can learn from this case as we need to be better at dealing with such complex and sensitive issues.”

Sims could not be reached for comment.

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