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Unfair dismissal because furlough not considered as part of redundancy consultation

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Unfair dismissal because furlough not considered as part of redundancy consultation

In this article, Employment Partner Paul Burton looks at a recent case where the ET decided unfair dismissal because furlough wasn’t considered as part of a redundancy consultation. He looks at what transpired and discusses the implications for employers.

While only a first instance case at the employment tribunal (ET) level, the decision in Mhindurwa v Lovingangels Care Ltd has been widely reported as the first case in which an employee has been found to be unfairly dismissed because furlough was not considered as part of the redundancy consultation.

Mhindurwa v Lovingangels Care Ltd

Mrs Mhindurwa was a care assistant who was made redundant at the beginning of the pandemic rather than being furloughed.  She was employed in 2018 to provide live-in care for a vulnerable adult, but in February 2020 the person was moved into a care home due to their deteriorating health.

The result was that there was no job for Mrs Mhindurwa and the employer wrote to her to confirm there was no other live-in work available for her and no other suitable alternative employment.

Does an employer have to put an employee on furlough if they request it?

In a Zoom meeting in June 2020 the employer told Mrs Mhindurwa they could offer her domiciliary care work, but she could not do it as it involved travelling too far from home.

She requested that she be furloughed, but the employer told her that was not possible, due to the fact there was no live-in care work for her.

Is it unfair dismissal if an employer doesn’t consider furlough before redundancy?

The employer then completed the redundancy consultation process with Mrs Mhindurwa and, on 13 July 2020, sent her a letter to inform her that, as there was no alternative, she was to be made redundant and given notice of dismissal. Mrs Mhindurwa appealed the decision internally, but was unsuccessful. 

She brought a claim in the ET for unfair dismissal, saying her dismissal was not because of redundancy, but because she had raised issues with the employer about underpayment of wages.

She also raised the point that there was available live-in care work, as the employer continued to advertise for live-in carers.

What did the ET find?

The ET dismissed the underpayment of wages claim and held Mrs Mhindurwa was not dismissed because she raised the issue.  It also found that the employer did not have any live-in care vacancies, accepting their evidence that the advert had been left up by mistake and had also not intended to punish Mrs Mhindurwa, evidenced by the fact they tried to find her domiciliary work.

‘Failure to consider furlough’

Despite the above findings, the dismissal was still found to be unfair.  The judge said this was because of a “failure to give consideration to the possibility of furlough and the failure to offer the claimant a proper appeal”.

His reasoning for finding the dismissal unfair on the furlough point was due to the fact the employer had no way of knowing if the lack of suitable work for Mrs Mhindurwa would change by the time furlough came to an end.

An employment lawyer's view

Paul Burton, Employment Partner at Frettens, said: “This decision may be surprising to many as it has been commonly thought that, as there are costs to both the employer and the public purse in keeping people on furlough, then it would not be unfair to dismiss someone during the furlough period if there was a genuine redundancy at the time.

This decision does put a lot of doubt into that thinking. However, it must be remembered that this is a first instance case and is not binding on other employment tribunal decisions.  Another judge may have come to a different conclusion on pretty much the same facts.”

What does this case mean for employers?

“The case does serve as a warning to employers though that there is a risk of making redundancies during the furlough period.  For employees, it shows them that they may be able to succeed with a claim and we are likely to see other claimants trying to bring cases now on similar facts. 

We may get conflicting decisions going forward and, until the point is taken to the appellant level, it will not be clear which way an employment tribunal may go.  We will of course keep you updated as and when any further cases are reported on this very important issue.”

Employment law advice and guidance: Stay up to date

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