Failure to consider furlough was unfair dismissal

In Mhindurwa v Lovingangels Care Limited, the Employment Tribunal held that an employee was unfairly dismissed when her employer failed to consider using the Government’s Coronavirus Job Retention Scheme (“Furlough Scheme”) as an alternative to redundancy.

Background

The Claimant was a care assistant providing live-in care for an elderly client.

In May 2020, the Claimant requested to be put on the Furlough Scheme after her client was admitted to a care home, the requirement for live-in carers significantly reduced as a result of the COVID-19 pandemic, and there was no alternative domiciliary care work close enough to the Claimant’s home.

The employer refused to place the Claimant on the Furlough Scheme reasoning that they did not have any work for her.

Judgment

The Employment Tribunal accepted that there was a genuine redundancy situation. However, it found that the Claimant’s dismissal by way of redundancy was unfair because “a reasonable employer would have given consideration to whether the Claimant should be furloughed to avoid being dismissed on the grounds of redundancy”. It noted that these were the exact circumstances for which the Furlough Scheme was designed and her employer had not appeared to have considered whether she should have been furloughed for a period of time to see if the need for live-in care work resumed.

What’s next?

While this is a first-instance decision, it does indicate that Employment Tribunals may expect employers to have considered using the Furlough Scheme when looking at alternatives to redundancy. Employers will therefore need to be able to explain whether they considered the Furlough Scheme and, if it was not utilised, why it was not considered a suitable alternative.

Further information

For specific advice for your business, please get in touch with our specialist Employment Law team through this website or by calling 0330 404 0778.

Our partners at Ashtons HR Consulting are also on hand to assist you.