Redundancy and the duty to consider furlough

Mhindurwa v Lovingangels Care Ltd

An employee made redundant in the early months of the COVID-19 pandemic was unfairly dismissed because her employer hadn’t considered furloughing her.

Background

Ms Mhindurwa worked as a care assistant providing live-in care for an elderly woman until in February 2020 the lady was moved into a care home. In May 2020 she asked to be furloughed; her employer refused on the basis that they couldn’t offer her any more live-in care work due to the restrictions imposed to control the spread of the virus. In July 2020 she was dismissed for redundancy. She brought various claims, among which was one for unfair dismissal.

Tribunal decision

Her unfair dismissal claim was upheld.

The principal reason for this was that the judge held that ‘in July 2020 a reasonable employer would have given consideration to whether [she] should be furloughed to avoid being dismissed on grounds of redundancy’. Her employer had no live-in work available and could only offer her domiciliary work which wasn’t suitable because of the travelling involved. The judge commented that ‘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 employer. Although her employer had no work for her at the time of the dismissal, it had no way of knowing if that was going to change and didn't consider whether she should be furloughed for a time to see if any other work became available.

Link to judgment: https://www.bailii.org/uk/cases/UKET/2021/3311636_2020.html

Comment

This is a tribunal decision and so not binding on other tribunals. It is however a warning to employers that if they did not consider furlough then this may be an unfair dismissal – something that we warned about at the outset. In the early stages of the furlough scheme the cost was neutral to an employer, with one uncertainty which was whether employees could be asked to take holiday when on furlough. This was the only potential cost to an employer of continuing to have employees on the books.

There will be a difference between an employer who says, ‘I considered the furlough scheme but discounted it because we knew we were no longer doing that work’ and one who said ‘I did not furlough my employee because I did not know what the future would look like with COVID'. The former is likely to be fair; the latter, based on this decision, unfair. That was the whole point of the scheme, to tide employers over during the uncertainty.