In the recent case of  Mhindurwa v Lovingangels Care Limited, an Employment Tribunal held that an employee, who was made redundant in the early months of the pandemic, was unfairly dismissed because her employer did not consider putting her on furlough leave.

What was the case about?

Ms Mhindurwa was employed as a care assistant. Between October 2018 and February 2020, she provided live-in care to a vulnerable client, until they were admitted into hospital and then moved into a care home  in May 2020 when  she asked to be put on furlough leave. Her employers refused, on the basis ‘there was no work for her’.

Her employers wrote to her to explain that she was at risk of being made redundant because they couldn’t offer her any more live-in care work due to the restrictions imposed to control the spread of COVID-19. She was offered a domiciliary care position. When she did not accept the role, she was given notice of dismissal in July 2020.

Her appeal against dismissal was rejected,

A claim was issued in the Tribunal where Ms Mhindurwa argued that she should not have been dismissed and should have been furloughed instead.

What did he Tribunal decide?

The Tribunal accepted that Ms Mhindurwa had been dismissed because of redundancy but that her dismissal was unfair for two reasons:

First, the Coronavirus Job Retention Scheme (furlough) was available to provide financial support to employers whose staff couldn’t work because of COVID-19 lockdown restrictions and to avoid them being laid off or made redundant.

 ‘in July 2020, a reasonable employer would have given consideration to whether  the claimant should be furloughed to avoid being dismissed on grounds of redundancy… this was the type of situation that the furlough scheme envisaged. Why it was not considered or not considered suitable in this case is not explained by the respondent.’

Employment Judge Gumbiti-Zimuto

It went on to say that the business should have considered furloughing Ms Mhindurwa for a period of time to see whether live-in care work would be required in the near future, or whether there was other work she could do.

At this time, employers could claim up to £2,500 per month for each furloughed worker.

Second, the Tribunal found the appeal merely simply rubber stamped the original decision. The appeal manager made no enquiries to ascertain for himself whether Ms Mhindurwa’s complaints were correct or incorrect and simply assumed that the business had made the correct decision in the first place.

How does this affect employers?

This is the first decision we’ve seen on this point and, whilst it’s not binding on any other Tribunal, it does indicate that Tribunals may expect employers to consider furloughing ‘at risk’ staff as part of their duty to consider alternatives to redundancy.

That doesn’t mean that an employer who made the decision to make staff redundant, even though the furlough scheme was available, will be found to have unfairly dismissed them. However, the Tribunal will consider what steps the business took to avoid redundancies and may want to know whether it considered making use of the furlough scheme and, if it did, why it rejected the idea. It’s always helpful in these situations if the business has made a contemporaneous written note of those reasons.

 

10th August 2021

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