In this article, Employment Partner Paul Burton looks at a recent case where the ET decided unfair dismissal because furlough wasn’t considered as part of a redundancy consultation. He looks at what transpired and discusses the implications for employers.
While only a first instance case at the employment tribunal (ET) level, the decision in Mhindurwa v Lovingangels Care Ltd has been widely reported as the first case in which an employee has been found to be unfairly dismissed because furlough was not considered as part of the redundancy consultation.
Mhindurwa v Lovingangels Care Ltd
Mrs Mhindurwa was a care assistant who was made redundant at the beginning of the pandemic rather than being furloughed. She was employed in 2018 to provide live-in care for a vulnerable adult, but in February 2020 the person was moved into a care home due to their deteriorating health.
The result was that there was no job for Mrs Mhindurwa and the employer wrote to her to confirm there was no other live-in work available for her and no other suitable alternative employment.
Does an employer have to put an employee on furlough if they request it?
In a Zoom meeting in June 2020 the employer told Mrs Mhindurwa they could offer her domiciliary care work, but she could not do it as it involved travelling too far from home.
She requested that she be furloughed, but the employer told her that was not possible, due to the fact there was no live-in care work for her.
Is it unfair dismissal if an employer doesn’t consider furlough before redundancy?
The employer then completed the redundancy consultation process with Mrs Mhindurwa and, on 13 July 2020, sent her a letter to inform her that, as there was no alternative, she was to be made redundant and given notice of dismissal. Mrs Mhindurwa appealed the decision internally, but was unsuccessful.
She brought a claim in the ET for unfair dismissal, saying her dismissal was not because of redundancy, but because she had raised issues with the employer about underpayment of wages.
She also raised the point that there was available live-in care work, as the employer continued to advertise for live-in carers.
Click here to read the full article, which includes the ET's verdict.