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16 August 2021 0 Comments
Posted in Employment, Opinion

Employee unfairly dismissed – furlough not considered as an alternative to redundancy

Author headshot image Posted by , Partner
Contributing authors: Charlotte Kilcar

Prior to March 2020 the term ‘furlough’ was little understood. Over the last 18 months it has become a well known device used to save thousands of employees from losing their jobs.

Redundancy

Employment tribunal decisions are starting to appear which involve furlough and how it has been used.  In the recent case of Mhindurwa v Lovingangels Care, the employment tribunal decided that a reasonable employer would have considered whether or not an employee could be furloughed to avoid redundancy. In this case there was no explanation offered by the employer for failing to use furlough and the dismissal appeal was described as “a rubberstamp exercise”. The judge found the dismissal unfair.

The claimant was a care assistant with over two years service and was refused furlough by the employer when she asked in May 2020. The rationale appeared to be that there was no work for the claimant and the employer simply wanted to end her employment due to redundancy. The judge said

The whole purpose of the furlough scheme was to avoid layoff of employees because of the effect of the covid-19 pandemic by providing significant government support to employers. I am of the view that in July 2020 a reasonable employer would have given consideration to whether the claimant should be furloughed to avoid being dismissed on the grounds of redundancy […] Why it was not considered or not considered suitable in this case is not explained by the respondent”.

As furlough is set to continue until 30 September 2021, it is important that furlough is considered as a potential alternative to any planned redundancies. This case does not automatically mean that any redundancy will be unfair if furlough was available as an alternative. However, it is important that employers keep a written record of the reasons for making redundancies instead of using the furlough scheme as this will clearly be an important consideration for any employment tribunal if redundancy is contested.

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