Redundancy and Alternatives to Dismissal
The Employment Appeal Tribunal has confirmed that it was unfair to dismiss a live-in carer during the pandemic, without considering furlough as an alternative to redundancy.
What Was the Background to the Case?
In the case of Lovingangels Care Ltd v Mhindurwa, the claimant was a live-in carer. She was put at risk of redundancy in May 2020 due to the COVID-19 pandemic. She asked to be furloughed but the employer refused and subsequently made her redundant in July 2020. The claimant brought a claim for unfair dismissal, which was upheld by the Employment Tribunal. The Tribunal found that whilst there was a genuine redundancy situation, the employer failed to properly consider furlough as an alternative to dismissal, as required for procedural fairness. This rendered the dismissal unfair. The employer appealed to the EAT.
What Did the EAT Decide?
The EAT dismissed the appeal. The employer failed to consider furlough as an option, even on a temporary basis until such time as the claimant was able to resume her work. The employer tried to argue that the claimant would not have been eligible for the furlough scheme. The EAT found that this was a question that should have been determined at the time, and not raised retrospectively in defence of a claim. The outcome does not mean that the employer could or should have furloughed the claimant - ultimately that would have been a question for the employer to determine. The employer should however have properly considered the possibility of furlough as an alternative to redundancy. The dismissal was procedurally unfair.
Best Practice
A dismissal is more likely to be considered fair where an employer has considered whether it is possible to avoid or reduce the need for dismissals. The furlough scheme has now closed, but other options employers might consider include voluntary redundancies, recruitment freezes, reducing working hours, granting unpaid leave, or reducing costs through measures such as pay freezes/cuts.
Employers should note that there is a separate duty to look for alternative employment as part of a redundancy process. The failure to consider suitable alternative employment is also likely to render a redundancy dismissal unfair.