Unfair Dismissal Due to Failure to Consider Furloughing Employee
An Employment Tribunal has held that an employer's failure to consider furloughing an employee, who was instead made redundant, made the employee's dismissal unfair.
Background
In the case of Mhindurwa v Lovingangels Care Limited, Ms Mhindurwa was employed by Lovingangels Care Limited (Lovingangels) as a care assistant. From October 2018, she provided live-in care for a client of Lovingangels. In February 2020 the client was admitted to hospital and subsequently discharged to live in a care home. Ms Mhindurwa was therefore no longer required to provide live-in care for the client.
In May 2020, Lovingangels wrote to Ms Mhindurwa stating that it was not able to offer her live-in care work. Ms Mhindurwa requested to be placed on furlough leave but this request was rejected on the basis that there was no work for her.
In July 2020, following two redundancy consultation meetings, Ms Mhindurwa was informed that that there was no alternative to redundancy and she was given notice of dismissal on the grounds of redundancy. Ms Mhindurwa appealed this decision but her appeal was rejected.
Ms Mhindurwa brought a claim in the Employment Tribunal against Lovingangels for, among other things, unfair dismissal.
Failure to Consider Furlough
The Tribunal held that Ms Mhindurwa's dismissal was unfair. The Tribunal considered that a reasonable employer would have considered whether Ms Mhindurwa should be furloughed to avoid being made redundant. Although there was no work for Ms Mhindurwa, this was because of the significant impact of the COVID-19 pandemic on the availability of live-in work. This was therefore the type of situation where furlough leave and the Coronavirus Job Retention Scheme (Scheme) were intended to be used. Why furlough leave was not considered or not considered to be suitable was not explained by Lovingangels.
The Tribunal also went on to state that Lovingangels did not appear to consider whether Ms Mhindurwa "should be furloughed for a period of time to see what if any change there was in the availability of live-in care work or other work that [she] could take on".
Considerations for Employers
Although this is only a first instance decision, the Employment Tribunal's judgment shows that employers may have a duty to actively consider furlough leave when making redundancies whilst the Scheme is still available. The absence of a reasonable explanation for not furloughing an employee may make the dismissal unfair.
The Scheme will run until 30 September 2021 and, although only just over six weeks remain, it should still be considered by employers making redundancies where work has reduced due to COVID-19.
The contributions employers have to make to employees' salaries under the Scheme and the changes to it before it draws to a close are outlined in one of our previous reports.