A recent Employment Tribunal decision (Mhindurwa v Lovingangels Care Limited) has held that an employee, made redundant almost four months after the COVID-19 outbreak, was unfairly dismissed because her employer did not consider furlough without reasonable explanation.
Facts
Ms Mhindurwa worked as a care assistant and provided live-in care for an elderly woman. In February 2020, the woman moved into a care home thereby reducing the need for live-in care.
Due to the COVID-19 restrictions, LCL could not offer Ms Mhindurwa any alternative live-in care work and could only offer domiciliary care work. That, however, was unsuitable for Ms Mhindurwa, due to the location and lengthy commute from her home.
In May 2020, LCL wrote to Ms Mhindurwa to advise that she was at risk of redundancy. Ms Mhindurwa asked to be furloughed, however this was refused on the basis that “there was no work for her.” Ms Mhindurwa was dismissed by reason of redundancy on 13 July 2020.
In finding the dismissal unfair, the Judge took the view that: “a reasonable employer would have given consideration to whether the claimant should be furloughed to avoid being dismissed on grounds of redundancy” and that “the whole purpose of the furlough scheme was to avoid lay off of employees because of the effect of the Covid-19 pandemic”.
LCL’s failure to consider furlough as an alternative prior to dismissal and during the appeal stage meant the dismissal was unfair.
Laura Brown comments:
“Although not binding on other tribunals, this decision nonetheless highlights the importance of considering furlough when exploring alternatives to redundancy. Indeed, Tribunals may consider such things as: what measures the employer took to avoid redundancies; whether the employer considered using the furlough scheme; and (if applicable) why it chose not to furlough staff. Employers are therefore wise to retain evidence showing that such matters have been properly considered."
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