Furlough Caselaw – Does failing to furlough an employee make a dismissal unfair?
03 September 2021
In an interesting first instance case (Mrs B Mhindurwa v Lovingangels Care Limited [2021]) so, one which is not binding on the Tribunal but an indication of decisions that may follow, an Employment Judge held that the employer did have a duty to consider furlough when making the employee redundant; and without a reasonable explanation for not furloughing the individual as an alternative, it made the dismissal unfair.
In this case, Mrs B Mhindurwa worked as a care assistant; she was employed as a live in care assistant for a lady, who in February 2020 was moved to a care home. On that basis, Mrs Mhindurwa’s role was redundant.In May 2020 Mrs Mhindurwa requested to be placed on furlough, which was refused by Lovingangels Care Limited, due to there being “no work”, she was later dismissed in July 2020 on the grounds of redundancy.
In upholding Mrs Mhindurwa’s claim, the Judge made reference to a reasonable employer considering furlough to avoid redundancy (which underpins the purpose of the scheme) and that the employer had no way of knowing whether the working position would change with work becoming available at a later time.
Looking closely at the facts; it is clear that in July 2020 it was impossible for Lovingangels Care Limited to place Mrs Mhindurwa on Furlough due to the rules being that no one could be furloughed for the first time under the scheme at that time. However in May 2020 this was possible and as such the decision stands as correct and the unfair dismissal claim was successful.
There is likely to be an increase in decision being published by the Tribunal’s in which they deal with and rule upon Covid related claims. One such case is Miss A Prosser v Community Gateway Association Ltd [2021]. This case involved a company asking a pregnant employee to work from home in order to reduce the risk of her catching Covid.
Prior to the first lockdown, Miss Prosser had informed her employer that she was pregnant. Due to the Governments guidance at that time suggesting that pregnant women were at a substantially higher risk of COVID, Community Gateway Association Ltd sent Miss Prosser home, on full pay. Miss Prosser later brought a claim for sex discrimination.
The Tribunal, although placed in a difficult position, dismissed the claim on the basis that sending Miss Prosser home was not unfavourable treatment and was rather treatment which was appropriately informed through the Government’s Public Health Guidance. This demonstrates the difficult job for employers and Tribunal’s in navigating through the effects of the pandemic.
If you require advice in connection with anything raised in this article, please contact a member of our employment team on 01254 828300.
