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An obligation to furlough?

After being made redundant in July 2020, Mrs Mhindurwa, a care assistant, brought a claim in the Employment Tribunal for unfair dismissal, arguing that the employer should have placed her on furlough, in order to avoid her redundancy. Was her dismissal fair in the circumstances?

 Mhindurwa v Lovingangels Care Ltd

Mrs Mhindurwa’s employment, from October 2018, involved the provision of live-in care for a client (HR) of Lovingangels. HR was admitted into hospital in February 2020 and on discharge from hospital went to live in a care home. As a result there was no work for Mrs Mhindurwa. By a letter dated 18 May 2020, Lovingangels advised Mrs Mhindurwa that it was not able to offer her live-in care work and invited her to attend a meeting to discuss the possibility of her employment terminating and the reasons for it, as well as the exploration of whether there was any alternative work available. Prior to the meeting Ms Mhindurwa requested to be furloughed, but her request was refused because “there was no work for her”.

The meeting took place on 12 June 2020 and it was made clear to Mrs Mhindurwa that only domiciliary care work could be offered to her, which she refused. There was a further meeting on 6 July, after which Mrs Mhindurwa was informed in writing that there was no alternative to redundancy and her employment was terminated.

Mrs Mhindurwa appealed against her dismissal, however her appeal was dismissed in what the Tribunal described as “a rubberstamp of what had gone before”.

At the hearing Mrs Mhindurwa alleged there was no real redundancy as Lovingangels were advertising for live in carers at the time and also said that the real reason she had been selected was because she’d complained about her wages.

Consequent Mrs Mhindurwa brought claims in September 2020 for unfair dismissal, and other claims that are beyond the scope of this alert. An Employment Tribunal hearing took place at Reading on 4 June 2021.

Decision

In this first instance decision, the Employment Tribunal found that whilst Mrs Mhindurwa was dismissed because of redundancy, her dismissal was unfair because Lovingangels had failed to consider whether Mrs Mhindurwa should have been placed on furlough as an alternative to dismissal and did not facilitate a proper appeal.

Commenting on what he expected a reasonable employer would do in July 2020, the Judge remarked that consideration should have given to whether Mrs Mhindurwa should have been furloughed to avoid being made redundant. The Judge also said that this was the type of situation the furlough scheme envisaged and why it was not considered or not considered suitable was not considered by Lovingangels.

Comment

As far as we are aware, this is the first case to consider the use of the Coronavirus Job Retention Scheme (“CJRS”) as an alternative to redundancy. Given it is an Employment Tribunal decision it is not binding on other Tribunals and should therefore be seen as persuasive only. It is likely that the Employment Tribunal would have reached a different conclusion if Lovingangels had provided some sort of explanation as to why it did not consider the CJRS was not suitable in the circumstances. For example, no evidence was presented as to the potential additional costs to Lovingangels had it utilised the CJRS.

With the CJRS continuing in existence until 30 September, any employer contemplating redundancies should consider whether an employee should be placed on furlough as an alternative to redundancy and provide an explanation as to why it is not a suitable option.

If you have any queries relating to furlough, redundancy or any other Employment Law or HR queries, please do not hesitate to contact our Employment team on 01228 552600 or 01524 548494.

 

This alert does not provide a full statement of the law and readers are advised to take legal advice before taking any action based on the information contained herein.

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