The recent Employment Tribunal decision of Mhindurwa v Lovingangels Care Limited is the first reported case to make its way through the system to consider the implications for an employer who failed to properly consider ‘furlough leave’ as an alternative to redundancy.
Mrs Mhindurwa, a carer, was dismissed by reason of redundancy after a drop in live-in care work. She brought claims for unfair dismissal, unlawful deductions of wages (and holiday pay), and a claim for the failure to provide her with an employment contract.
Mrs Mhindurwa had provided live-in care to an individual who was subsequently admitted to hospital, before then being moved to a care home. Her employer, despite continuing to advertise for live-in care roles, maintained that there was not any further live-in care work available. As such, Mrs Mhindurwa was told that she was at risk of redundancy.
There was, however, still a need for domiciliary care (where carers visit the homes of individuals at certain times throughout the day to assist with chores and provide companionship). This was offered to Mrs Mhindurwa, but rejected on the grounds that it was not feasible due to her living arrangements. The employer decided that there was no alternative to redundancy and so the decision was made to dismiss Mrs Mhindurwa.
Notwithstanding the above, Mrs Mhindurwa had, a number of months prior to her dismissal, made a request to be placed on furlough. Her employer had refused this request on the basis that there was not any work for her in any case.
The Employment Tribunal found that Mrs Mhindurwa was unfairly dismissed. It held that the decision to dismiss her was not one that another employer, acting reasonably, would have made in the circumstances. Although there was not any live-in care work available, the employer should have considered placing her on furlough, at least until it became clear whether there would be any further work for her to carry out. The Employment Tribunal noted that, at the time, the cost to the employer of furlough leave was minimal and a reasonable employer would have used the Coronavirus Job Retention Scheme in these circumstances.
Furthermore, the individual who decided Mrs Mhindurwa’s appeal against the decision to dismiss her was found to have merely “rubberstamped” the employer’s original decision. No further enquiries into Mrs Mhindurwa’s claims were made. The employer had therefore not carried out a fair process.
Comment and future implications
It is no doubt true that the Covid-19 pandemic led to a significant reduction in live-in care work due to the restrictions and measures which were put in place for vulnerable individuals (such as the requirement to shield). However, as was recognised by the Employment Tribunal in this case, this was exactly why the government introduced the Coronavirus Job Retention Scheme in March 2020; i.e. to provide temporary relief and retain employees where there was a reduction in work as a result of the Covid-19 pandemic.
After a number of extensions, furlough leave is expected to formally end on 30 September 2021.
Whilst this is only a first instance decision, and therefore does not bind the decisions of future Employment Tribunals (and indeed can still yet be appealed by the employer), it is a useful indicator of how Employment Tribunals may view employers who have failed to placed eligible employees on furlough. It may of course be too late for most employers, but certainly the case throws up an interesting note of caution to any employers who are making redundancies now – given that the ability to furlough remains in place until 30 September 2021.
There is also currently a large backlog of cases in the Employment Tribunal system, so it is quite likely that a number of cases similar to this one will appear over the course of the next year or more and some will inevitably be appealed, providing some much needed certainty on what the legal position should be. It is easy to imagine that lawyers acting for employers will be seeking to establish that there was no obligation at all for an employer to consider furlough leave, let alone grant it.
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