Dated updated:

Summary

A recent Employment Tribunal (ET) case of Mhindurwa v Lovingangels Care held that the employer’s failure to consider furloughing an employee prior to making her redundant meant the dismissal was unfair. It was also deemed unfair as the disciplinary appeal process was also not done properly.

The employee in this case was employed as a live-in-carer. In February 2020, the person who the employee cared for went into hospital and then subsequently moved into a care home and therefore her role was apparently redundant. Due to the coronavirus pandemic the need for live-in-carers had diminished and therefore the employer could not offer the employee another role.

In May 2020, the employee had requested to be put onto the furlough scheme, which at this time employees were still able to be enrolled onto without having been on it before. This request was refused as the employer asserted that there was no work for her. Subsequently in July 2020, she was made redundant.

The ET held that as the employer had not considered furloughing the employee prior to making her redundant that the dismissal was unfair.

The ET appreciated the fact that the employer had no work for the employee at the time of dismissal but noted that the employer did not know this wouldn’t change soon given the ever-changing nature of the pandemic. In the tribunal’s view, the better option was putting the employee on furlough for a period of time to ascertain whether the lack of available work would change.

This may impact upon on-going tribunal cases in which redundancies have been made during the pandemic where the option of furlough was at the disposal of the employer at the point of dismissal. Evidence of any consideration of furlough will be important in these circumstances.