Failure to consider Furlough makes dismissal unfair
When the government introduced the furlough scheme, no specific guidance was provided about whether an employer was obliged to put employees on furlough or how a decision to dismiss instead of putting employees on furlough would be treated under Employment Law provisions and applied by Employment Tribunals.
As employment lawyers we had to make our best assessment of how the existence of the furlough scheme could impact the fairness of decisions to dismiss, particularly for redundancy and provide advice based on our professional Judgement. We have had to wait to find out whether the Employment Tribunal’s agreed with that evaluation. We are delighted that a recent Tribunal case has confirmed that our assessment of the situation and the advice we have provided our clients was correct.
The Reading Employment Tribunal have issued their Judgment in the case of Mhindurwa v Lovingangels Care Limited, which confirms that an employer must give consideration to whether an employee should be put on furlough as an alternative to dismissal or risk the dismissal being unfair.
In this case the employee was employed to provide live-in care to an individual. Following a deterioration in the health of the individual they were admitted to a care home. As a result, the employer concluded that the employee’s role was at risk of redundancy. At the time, the employer had no other suitable work available and had limited access to live-in care work as a result of the coronavirus pandemic.
The employee asked to be put on furlough in May 2020 but the employer refused to do so. They were unable to satisfactorily explain why they were unable to put the employee on furlough as an alternative to dismissal and simply stated that they could not put the employee on furlough because they had no work available for her.
The Tribunal found that the employer’s failure to give proper consideration to putting the employee on furlough rendered the dismissal unfair.
Whilst this is only a decision of one Employment Tribunal and is not binding on other Tribunals, it is likely to be a fair indicator of how the issue will be approached.
The furlough scheme will continue to be available until 30th September.
Author: Sarah Edwards, Employment Law Solicitor at Howarths