9th Nov 2021

Can a failure to consider furlough result in an unfair redundancy?

With the Coronavirus Job Retention Scheme (CJRS), or better-known furlough scheme having now ended, more decisions from the Employment Tribunals on the fairness of redundancy dismissals are now being published. 

And the recent case of Mhindurwa v Lovingangels Care Limited is a reminder to employers of the need to adopt and follow a fair redundancy process.

Background

Ms Mhindurwa was employed by Lovingangels Care Limited as a care assistant providing live-in care for an elderly client.

The client was admitted to hospital and subsequently discharged to go live in a care home. The employee was therefore no longer required to provide live-in care.

Ms Mhindurwa asked whether she could be furloughed. Lovingangels refused this request on the basis that there was no work for her.

As live-in care was impacted upon by Covid-19 restrictions, and Ms Mhindurwa did not accept alternative domiciliary work that was available (due to it being too far from her home), she was subsequently dismissed on the grounds of redundancy.

Following an unsuccessful appeal, Ms Mhindurwa brought a claim for unfair dismissal.

Tribunal Decision

The Employment Tribunal decided that Ms Mhindurwa’s dismissal was unfair because a reasonable employer should have considered furlough, as an alternative to redundancy.

In reaching their decision, the judge said - “This is the type of situation that the furlough scheme envisaged. Why it was not considered, or not considered suitable in this case is not explained by the respondent”

Although there was no work at the time, that could have changed, and the employer could have furloughed the employee whilst waiting to see if the situation did change.

What you need to know!

  • Although this is only a first instance decision (and not legally binding on other tribunals) this judgment shows that employers may have a duty to actively consider furlough leave when making redundancies whilst the furlough scheme was still available. The absence of a reasonable explanation for not furloughing an employee may make the dismissal unfair.
  • This case does not state that the employee must have been furloughed as an alternative to redundancy, rather the employer should have considered furlough as part of a fair redundancy process.
  • If you have dismissed employees due to redundancy during the furlough scheme, and refused any requests to furlough employees, remember that employees must bring an unfair dismissal claim within three months of the date of termination. The employee must engage with ACAS early conciliation before bringing a claim, and the time taken to do this will be added to the three-month time limit.

 

This was a decision that I spoke about at my last “Ask Mike” online session for our Berwins 360 members and I’ll be updating you on the latest employment developments and answering your people issues, again on Thursday 18 November – for further details on how to join, get in contact  with Martin Whincup on 07921 451860, or email martinwhincup@berwins.co.uk.

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