Employment Tribunal rules in Mhindurwa v Lovingangels Care Limited that an Employer who failed to consider furlough as an alternative to redundancy unfairly dismissed employee

Ms Mhindurwa was employed as a care assistant by the Respondent, Lovingangels Care Limited, providing live-in care to a vulnerable person from October 2018 to February 2020. In February 2020, the vulnerable person was admitted to hospital and then moved into a care home meaning Ms Mhindurwa’s caring role was no longer required. As a result, in May 2020, Ms Mhindurwa requested to be furloughed pursuant to the Coronavirus Job Retention Scheme (CJRS) in light of the ongoing Covid-19 pandemic. Ms Mhindurwa’s employer refused her furlough request on the basis that ‘there was no work for her.’

In May 2020 the employer informed Ms Mhindurwa that she was at risk of redundancy as she could not be offered any further live-in care work as a result of COVID-19 restrictions. The employer then met with the Claimant to inform her that the only work available was in domiciliary care. Ms Mhindurwa rejected this offer and was given notice of dismissal in July 2020 and her redundancy pay. Ms Mhindurwa appealed the employer’s decision to dismiss, but her appeal was dismissed by the Appeal Manager. The Claimant then initiated legal proceedings in the Employment Tribunal claiming that her employer should have furloughed her rather than making her role redundant.

The Tribunal accepted that Ms Mhindurwa was dismissed by reason of redundancy, one of the five potentially fair reasons for dismissal, but ruled that her dismissal was unfair based on the following two reasons.

The first reason related to the availability of the CJRS, created in March 2020 to provide financial assistance to employers whose staff were unable to work as a result of the Covid-19 lockdown restrictions. In considering this, the Judge decided that “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.” The Judge considered that as the employer could only provide domiciliary work, rather than live-in care work, this would be unsuitable for the Claimant given the significant distance she would be required to travel each day to work. The Judge considered that “this was the type of situation that the furlough scheme envisaged.”  The Judge held that although the Respondent had no work for the Claimant at the time of the dismissal, it had no way of knowing if that was going to change, and did not consider whether the Claimant should be furloughed for a time to see if any other work became available. As a result, the Judge found that the Respondent could not provide a reasonable justification as to why the furlough scheme was not considered as an alternative to dismissal.

The second reason related to the appeal held regarding the Claimant’s dismissal. The Judge found that the appeal simply rubber-stamped the original decision as the Appeal Manager failed to make enquiries to ascertain whether Ms Mhindurwa’s complaints were correct but simply assumed that the employer had made the correct decision.

Interestingly, this marks the first Tribunal decision regarding the furlough scheme, redundancy and potential unfair dismissal claims. Whilst this decision is 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. It further confirms the importance of ensuring a fair appeals process is carried out, as an Employment Tribunal will consider the fairness of the entire disciplinary procedure to determine whether the dismissal was unfair.

Should you require advice or assistance in relation to any of the above please do get in touch with Jan Cunningham or David Mitchell in our Employment Team.