When a failure to consider furlough will result in an unfair dismissal12th August 2021 • 2 min read • Helen Littlewood
The Employment Tribunal (“ET”) have recently found, in the case of Mhindurwa v Lovingangels Care, that a failure to furlough an employee, and instead make them redundant, resulted in that employee being unfairly dismissed.
This decision will not bind other ETs. Also, cases such as this are very fact specific. However, this decision provides us with a helpful indication of when an ET may well find that a failure to furlough results in an unfair dismissal.
The Claimant, Mhindurwa (“M”) was employed by Lovingangels Care (“LC”) as a care assistant. M provided live-in care to a client of LC until that client moved into a care home. As a result of the pandemic, the movement of clients requiring live in care was restricted meaning that LC received less referrals. As a result, LC made M redundant, rejecting her request to be furloughed.
The Tribunal held that the dismissal was unfair and stated that:
“a reasonable employer would have given consideration to whether the claimant should be furloughed to avoid being dismissed on the grounds of redundancy”.
A deciding factor in this case was that, despite LC’s assertion that there was no live-in care work for M, LC had no way of knowing if this would change and whether work would be available at a later date if it had utilised the furlough scheme. The ET said the purpose of the furlough scheme was to avoid making employees redundant because of the impact of the COVID-19 pandemic and LC was unable to explain why it did not consider the furlough scheme to be suitable.
- an employee, have been made redundant/think you are in the process of being made redundant when a suitable alternative could have been/could be placing you on furlough leave; or
- an employer, considering making redundancies but have concerns about the use of the furlough scheme,
Please note the information contained in this briefing is intended as a general review of the subject featured and is not a substitute for obtaining specific legal advice.