D-BRIEF – Employment & Pensions Blog: Employers should consider furlough as an alternative to redundancy rules the Employment Tribunal

The Employment Tribunal, in the case of Mhindurwa v Lovingangels Care Limited, has ruled that the Claimant in the matter, Mrs Mhindurwa had been unfairly dismissed due to the fact that her employer, Lovingangels Care Limited, had failed to consider furlough as a potential alternative to redundancy.

Mrs Mhindurwa was employed by Lovingangels Care Limited (Lovingangels) as a care assistant and was providing live-in care for a particular individual from October 2018. In February 2020 the individual went to live in a care home and Mrs Mhindurwa was no longer required to provide them with live-in care.

In May 2020, Mrs Mhindurwa was contacted by Lovingangels who stated that they were no longer able to offer her live-in care work because of diminishing requirements for this due to the COVID-19 pandemic. Mrs Mhindurwa asked to be furloughed but her request was rejected. Following a meeting, Lovingangels then wrote to Mrs Mhindurwa stating that there was no alternative to redundancy and Mrs Mhindurwa was given notice of dismissal on the grounds of redundancy.

Employment Tribunal Decision
Mrs Mhindurwa contended that instead of being made redundant, she should have been placed on furlough. Lovingangels argued that the reason for redundancy as opposed to furlough was because there was no available work as a live-in carer, despite continuing to advertise for live-in carer roles after making Mrs Mhindurwa redundant.

Whilst the Employment Tribunal ruled that they were satisfied that Lovingangels had no work to provide Mrs Mhindurwa due to the effects of the pandemic; the Tribunal also ruled that at the time of the redundancy, July 2020, a reasonable employer would have given consideration to whether they should have placed the employee on furlough as opposed to making them redundant. As such, dismissal fell outside the range of reasonable responses.

The Tribunal commented that the Mrs Mhindurwa’s situation was the exact type of scenario that the furlough scheme had envisaged and did not believe that Lovingangels had adequately explained why the furlough scheme was not considered.

Whilst furlough is currently winding down and therefore this decision won’t be relevant for future dismissals, it is useful for any ongoing cases on similar facts. This is not a binding decision but gives an indication of how Employment Tribunals may consider furlough an important consideration in redundancy dismissals during the pandemic.

This case demonstrates that in situations where employers have made employees redundant on the basis of there being no work available during the pandemic, they are going to need to be able to evidence the rationale for making the employees redundant as opposed to placing them on furlough. However, the reason for redundancy will still be relevant and if redundancies were on the horizon prior to the pandemic due to a reduction in business and or financial constraints, in our view this could lead to a different decision.

For more information, please contact a member of the Employment Team.

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