In this case the employee was already on furlough prior to redundancy in some other cases the employer failed to consider furlough altogether.
However, the facts of this and other Covid-19 cases are subtly different. There are other cases with apparently inconsistent decisions, such as Mhindurwa v Lovingangels Care (2021), which decided that dismissing an employee instead of putting them on furlough because of the pandemic, did make the dismissal unfair. This is a tribunal-level decision that says making someone redundant instead putting them on furlough is not necessarily unfair. There was a 100% chance that the instructor would have been dismissed if a fair procedure had been followed so even though he was technically unfairly dismissed due to procedure, he received no compensatory award. This employer needed to cut costs irrespective of the furlough scheme and wanted to use furlough to pay some of the costs of the redundancy, which was allowed at that time. Employers can decide whether to make redundancies. The tribunal agreed the employer needed to cut costs despite the furlough scheme support.Īnother employer may have chosen to leave the employee on furlough for longer, but it was not unfair for this employer to choose not to. However, it was the procedural reasons and not dismissing him for redundancy, despite the existence of the furlough scheme, that made the dismissal unfair. The scoring of the instructor against the selection criteria took place before there had been any discussion about the potential redundancy or the selection criteria to be used. The unfair dismissal claim did succeed on procedural grounds because the decision to select the claimant for redundancy was made prior to the start of the consultation process. He claimed unfair dismissal on the basis that the furlough agreement prevented his redundancy. In April 2020, the flying school made redundancies and the instructor was selected for redundancy and dismissed in August 2020. Just after the start of the first national lockdown, he was given a furlough agreement to last for three weeks or ‘until you can return to work as normal’. Handley v Tatenhill Aviation Ltd | ET | 20 January 2021Ī flying instructor for a flying school with 12 staff was told that the business was closing due to the pandemic. This situation was exactly what the furlough scheme was intended for. The employer had also failed to carry out a fair appeal process.Īlthough no work was available at the time of the dismissal, the employer did not know when the position was going to change, and had not even considered furlough for a period of time to see if future work retuned to previous levels. In July 2020, a reasonable employer should have considered furlough to avoid redundancy dismissals as part of the duty to consider reasonable alternatives. The tribunal held that the dismissal was unfair. The employee had just over two years’ service and brought a claim for unfair dismissal on the basis that she should not have been dismissed but should have been furloughed instead. The care agency said there was no longer an immediate requirement for her role, or any other live-in care work, as demand had reduced significantly due to COVID-19. The carer provided live-in care for an elderly lady who then went into a care home. The Employment Tribunal held that a care assistant had been unfairly dismissed when her employer failed to consider furlough as an alternative to redundancy. Issue: unfair dismissal - furlough as an alternative to redundancy Mhindurwa v Lovingangels Care Ltd | ET |25 June 2021
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